24:0147(21)NG - NAGE, SEIU and VA Medical Center, Grand Junction, CO -- 1986 FLRAdec NG



[ v24 p147 ]
24:0147(21)NG
The decision of the Authority follows:


 24 FLRA No. 21
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, SEIU, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, GRAND JUNCTION, COLORADO
 Agency
 
                                            Case No. 0-NG-1211
 
                DECISION AND ORDERS ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of four Union proposals.
 
                           II.  Union Proposal 1
 
          ARTICLE 8
 
          Section 1.  Matters appropriate for mid-contract negotiations
       shall include those negotiable issues proposed by either party
       which are either newly formulated, or changes to established
       personnel policies and practices during the term of this
       agreement, which affect the working conditions of unit employees.
 
          Section 3(d).  If the proposal is made by the Union, the time
       limits and procedures described in section 3(b) will be utilized,
       with the roles reversed.
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposal 1 would require it to bargain
 over Union-initiated proposals during the term of the agreement.  The
 Agency argues that it has no duty to bargain over such proposals absent
 management-initiated changes in conditions of employment, citing the
 Authority's decision in Internal Revenue Service, 17 FLRA 731 (1985),
 petition for review filed sub nom. National Treasury Employees Union v.
 FLRA, No. 85-1361 (D.C. Cir. June 14, 1985).  The Agency also claims
 that the proposal conflicts with the parties' master agreement which
 limits mid-term bargaining to proposals concerning management-initiated
 changes.
 
    The Union contends that the Internal Revenue Service case does not
 prohibit the parties from agreeing to bargain on Union-initiated
 mid-term proposals.  The Union further argues that the section of the
 master agreement cited by the Agency does not apply to negotiations at
 the local level.
 
                               B.  Analysis
 
                  1.  Union-initiated mid-term proposals
 
    In Internal Revenue Service, cited by the Agency, the Authority held
 that an agency has no general obligation to bargain over union-initiated
 proposals during the term of a collective bargaining agreement.
 However, the Authority also held that an agency may be obligated to
 bargain over such a union-initiated proposal where (1) management seeks
 to alter an established condition of employment in a manner which is not
 precluded by the agreement;  (2) the proposal is submitted consistent
 with a reopener clause in the parties' agreement;  or (3) the proposal
 is made under section 7106(b)(2) and (3) of the Statute in response to
 the exercise of a management right under section 7106(a).  While an
 agency has no duty to bargain over mid-term proposals initiated by a
 union, there is nothing in the Internal Revenue Service case that would
 prohibit an agency from entering into a reopener clause like Union
 Proposal 1 which requires it to do so.
 
                  2.  Interpretation of master agreement
 
    The record in this case fails to provide a basis for substantiating
 the Agency's assertion that provisions of the parties' master agreement
 limit negotiations on this proposal.  Further, to the extent that there
 are factual issues in dispute between the parties concerning the duty to
 bargain in the specific circumstances of this case, these issues may be
 raised in other appropriate proceedings.  See American Federation of
 Government Employees, AFL-CIO, Local 2736 and Department of the Air
 Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air
 Force Base, Michigan, 14 FLRA 302 (1984).
 
                              C.  Conclusion
 
    For the reasons set forth above, Union Proposal 1 is within the duty
 to bargain.
 
                          III.  Union Proposal 2
 
          ARTICLE 10
 
          Section 4.  A steward or officer may request permission from
       his supervisor to report on duty one hour early or late, and be
       relieved from duty one hour early or late, whichever may be
       required, to permit the steward to assist an employee who is
       working a different shift, in the processing of a grievance during
       both the steward's and employee's on-duty time.  This request will
       be granted unless the change would result in the tour of duty
       extending over two days.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal would interfere with its right
 under section 7106(a)(2)(B) to assign work by prohibiting it from
 assigning duties to the union officers or stewards during the first or
 last hour of a shift so that the employee could process grievances.  The
 Agency also argues that Proposal 2 would have the effect of granting
 compensatory time to an employee in circumstances not authorized under 5
 U.S.C. Section 5543.  The Agency further contends that the proposal is
 inconsistent with 5 C.F.R. Section 610.121, a Government-wide
 regulation.  It claims that the proposed adjustment would require the
 Agency to schedule employees on the basis of union representational
 activities rather than the Agency's mission as required by the
 regulation.
 
    The Union contends that its proposal does not interfere with the
 Agency's right to assign work.  The Union claims that Proposal 2 simply
 facilitates the use of official time by the Union and employees by
 providing for an adjustment in a union representative's shift to overlap
 the shift of an employee.  Such an adjustment, the union explains, would
 permit the union representative and the employee to meet while both were
 in a duty status, using official time that the Agency had otherwise
 agreed to grant to the two employees.  As to the separate matter of
 official time, the Union points out that employees are only permitted to
 request and management is only required to consider such requests.
 Management may decide that either the employee or the union
 representatives cannot be spared for particular times requested to
 conduct representational activities and thus may deny the request.
 
    The Union also claims that the proposal would enhance an employee's
 ability to have the union representative of his or her choice.  Finally,
 the Union contends that Proposal 2 would not require the grant of
 compensatory time since it would not affect the number of hours worked
 by an employee during the week.
 
                       B.  Analysis and Conclusions
 
    As the Authority has previously indicated, the parties may negotiate
 procedures and practices which do not negate an agency's rights but
 which would enable a union to implement its statutory rights and duties
 with respect to the representation of employees.  See American
 Federation of Government Employees, AFL-CIO, Local 2272 and Department
 of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
 1014-15 (1982) (Union Proposal 7).  In National Treasury Employees
 Union, Chapter 66 and Internal Revenue Service, Kansas City Service
 Center, 1 FLRA 926 (1979), the Authority found that a proposal that
 would adjust the starting and quitting times of employees did not
 violate the agency's rights under section 7106(b)(1) and was within the
 duty to bargain.  As explained by the Union, Proposal 2 is concerned
 simply with adjusting the starting and quitting times of union officials
 when those officials are processing grievances involving employees on
 shifts other than their own.  Thus, the proposal would facilitate the
 carrying out of representational activities as an adjunct to whatever
 separate agreements directly concerned with use of official time that
 the parties are able to reach in particular circumstances.  As the Union
 has indicated, the Agency may take into account its work assignment
 requirements in arriving at those separate agreements and in acting on
 individual requests pursuant to those agreements.
 
    As interpreted, Proposal 2 is to the same effect as Proposal 1 in
 National Association of Government Employees, Local R14-8 and Veterans
 Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986),
 which we found to be within the duty to bargain.  For the reasons stated
 more fully in that deicsion, Proposal 2 is negotiable in this case.
 Additionally, like the proposal in VA Medical Center, Topeka, we find no
 basis upon which to conclude that the Union's proposal here either
 concerns a grant of compensatory time or requires the Agency to schedule
 employees in a manner other than that required by 5 C.F.R. Section
 610.121.
 
                           IV.  Union Proposal 3
 
          ARTICLE 11
 
          Section 2.  When an employee changes work shifts, he will not
       be required to report for duty for two shift periods.  The
       Dietetics Service will be exempted from this requirement.
 
          Section 9.  Employees will not be required to work more than
       two tours of duty in one workweek except to allow for a minimum of
       two shift periods between the end of one tour and the beginning of
       the next.
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposal 3 is inconsistent with 5
 C.F.R. Section 610.121, a Government-wide regulation which requires it
 to schedule employees consistent with actual work requirements.  The
 Agency argues that the proposal would require it to provide employees
 with two shift intervals between each shift worked by an employee
 regardless of actual work requirements.
 
    The Union contends that the proposal does not conflict with the
 regulation cited by the Agency.  It claims that Proposal 3 does not
 prevent the Agency from acting at all to schedule employees in
 accordance with mission requirements.
 
                        B.  Analysis and Conclusion
 
    The Authority finds that Union Proposal 3 is outside the duty to
 bargain for a reason other than that raised by the Agency.  Union
 Proposal 3 is essentially the same as Union Proposal 2 in VA Medical
 Center, Topeka, which we found to violate management's right to assign
 work.  The proposal in that case would have prohibited the agency from
 scheduling an employee to work on a shift if that employee had worked
 during the previous eleven hours, or to schedule an employee for two
 different tours of duty in the same week, regardless of the agency's
 actual work requirements and whether that employee's particular skills
 were needed on a particular shift.  We found that the proposal would
 place a condition upon the agency's exercise of its right to assign work
 and could prevent the Agency from determining what duties were to be
 performed on what shift in violation of section 7106(a)(2)(B).
 Similarly, Union Proposal 3 here would prohibit the Agency from
 scheduling an employee to work on a shift where the employee had worked
 on one of the two preceding shifts, or to work two tours of duty in the
 same week, regardless of the Agency's work requirements.  Accordingly,
 for the reasons set forth more fully in VA Medical Center, Topeka, we
 conclude that Union Proposal 3 here violates management's right to
 assign work and is outside the duty to bargain.
 
                           V.  Union Proposal 4
 
          ARTICLE 11
 
          Section 6.  Except in cases that adversely affect patient care,
       employees' days off will be consecutive.  Employees' days off will
       not be arbitrarily split.  An employees' written request for split
       days off will be considered.
 
                       A.  Positions of the Parties
 
    The Agency contends that Union Proposal 4 is inconsistent with 5
 C.F.R. Section 610.121, a Government-wide regulation which requires it
 to schedule employees consistent with actual work requirements.  It
 argues that Union Proposal 4 would require it to schedule employees for
 consecutive days off regardless of the Agency's actual work
 requirements.  The Union disputes the Agency's contentions.
 
                        B.  Analysis and Conclusion
 
    The Authority finds that Union Proposal 4 is to the same effect as
 Union Proposal 3 which we held to be within the duty to bargain in the
 VA Medical Center, Topeka case.  We found that the proposal in that
 case, which similarly would have provided employees with consecutive
 days off unless patient care would be adversely affected, was not
 inconsistent with management's rights and would not prevent the agency
 from scheduling employees consistent with actual work requirements as
 provided in 5 C.F.R. Section 610.121.  Union Proposal 4 here expressly
 states that the Agency need not provide employees with consecutive days
 off where patient care would be adversely affected.  Accordingly, for
 the reasons set forth more fully in VA Medical Center, Topeka, we
 conclude that Union Proposal 4 is within the duty to bargain.
 
                                VI.  Order
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
 to by the parties, bargain concerning Union Proposals 1, 2 and 4.  /*/
 IT IS FURTHER ORDERED that the petition for review as to Union Proposal
 3 be, and