26:0532(63)NG - NAGE, Local R1-109, and VA Medical Center, Newington, Conn. -- 1987 FLRAdec NG



[ v26 p532 ]
26:0532(63)NG
The decision of the Authority follows:


 26 FLRA No. 63
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R1-109, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, NEWINGTON, CONNECTICUT
 Agency
 
                                            Case No. 0-NG-1254
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authortiy because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of six proposals.  The Union submitted the
 proposals following the Agency's establishment of new tours of duty for
 three work leaders which required the three work leaders to work on
 Sundays on a rotational basis.  The new tours of duty changed a past
 practice under which one of the work leaders had not been assigned to
 work Sundays.  The Union had filed an unfair labor practice charge
 against the Agency but withdrew the charge in exchange for the
 opportunity to submit bargaining proposals on the matter.
 
                            II.  Proposal 1 /1/
 
          Management withdraw working leaders from weekend coverage, and
       allow the weekend crew to function as the evening crew in a
       non-supervised capacity.
 
                       A.  Positions of the Parties
 
    The Union argues that the weekend crew is essentially the same in
 size and function as the night crew, which is not supervised by work
 leaders, and therefore work leaders are not needed to supervise the
 weekend crew.  The Agency contends that the proposal prevents it from
 assigning weekend duty to the work leaders and violates its right to
 assign work under section 7106(a)(2)(B) of the Statute.
 
                       B.  Analysis and Conclusions
 
    We agree with the Agency that Proposal 1 would prevent it from
 assigning weekend work to the work leaders.  The Authority has
 consistently held that the right of management to assign work under
 section 7106(a)(2)(B) includes the right to determine:  (1) what
 particular duties will be assigned, (2) when work assignments will
 occur, and (3) to whom or to what position duties will be assigned.  See
 Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and
 Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 21
 FLRA No. 65 (1986), petition for review filed sub nom. Department of the
 Navy, Navy Public Works Center, Norfolk, Virginia v. FLRA, No. 83-3870
 (4th Cir. June 17, 1986).  Particularly, the right to assign work
 includes the discretion to determine when management wants the duties it
 assigns to its imployees to be performed.  See International Association
 of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437
 (1980).  Proposal 1 clearly and expressly prohibits the use of work
 leaders on weekends and thereby denies management its reserved right to
 determine that work leaders are necessary to supervise weekend crews.
 Accordingly, we conclude that Proposal 1 directly interferes with the
 Agency's right to assign work under section 7106(a)(2)(B) and is outside
 the duty to bargain.
 
                             III.  Proposal 2
 
          Management promote or hire a permanent weekend working leader.
 
                       A.  Positions of the Parties
 
    The Union asserts that the Agency could designate one of the weekend
 crew to provide guidance and supervision and relieve the work leaders of
 the need to work on weekends.  The Agency contends that the proposal
 would violate its rights to assign work and to hire employees under
 section 7106(a) of the Statute because it would require the Agency to
 hire or promote a permanent weekend work leader.
 
                       B.  Analysis and Conclusions
 
    As explained by the Union, Proposal 2 provides that work leader
 duties would be assigned to one of the weekend crew to provide necessary
 supervision in the absence of a work leader.  We agree with the Agency
 that the Union's proposal would require the hiring or assignment of an
 employee to perform work leader duties on weekends.  Such a requirement
 is inconsistent with the discretion inherent in management's rights
 under section 7106(a)(2)(A) "to hire" employees and section
 7106(a)(2)(B) to "assign work." American Federation of Government
 Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
 Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Proposal
 3).  Accordingly, we find that Proposal 2 is contrary to section
 7106(a)(2)(A) and (B) and is outside the Agency's duty to bargain.
 
                        IV.  Proposals 3, 6, and 7
 
    The FLRA Members disagree over the negotiability of these proposals.
 The decision and order on Proposals 3, 6, and 7, and Chairman Calhoun's
 dissent immediately follow this decision.
 
                              V.  Proposal 4
 
          Management allow Mr. Batchelor to perform an alternative work
       schedule in order for him to perform his church duties and
       responsibilities.
 
                       A.  Positions of the Parties
 
    The Union states that this proposal would allow Mr. Batchelor to
 rearrange his hours so that if he did work on Sunday he could work a
 split shift, which would enable him to perform his work leader duties
 and to retain his church position.  The Agency contends that this
 proposal would require it to permit Mr. Batchelor to split his shift and
 thereby interferes with its right to assign work under section
 7106(a)(2)(B).
 
                        B.  Analysis and Conclusion
 
    As explained by the Union, Proposal 4 is intended to provide for the
 rearrangement of Mr. Batchelor's hours of work to allow him to work a
 split shift and thereby to permit him to perform both his duties as
 church pianist and his work for the Agency.  Union Submission dated
 April 23, 1986 at third page.  We agree with the Agency that this
 proposal would violate its right to assign work.  Proposal 4 would
 require the Agency to set Mr. Batchelor's work schedule so that he would
 not work on Sunday morning, and would thereby interfere with the
 Agency's right to determine when assigned work should be performed.  See
 National Treasury Employees Union and Internal Revenue Service, 17 FLRA
 379 (1985) (Proposal 1), affirmed as to Proposal 1 sub nom. NTEU v.
 FLRA, No. 85-1320 (D.C. Cir. Feb. 6, 1987).  Therefore, for the reasons
 set forth in Internal Revenue Service, Proposal 4 directly interferes
 with management's right to assign work under section 7106(a)(2)(B) of
 the Statute and is outside the duty to bargain.
 
            VI.  Consideration of Whether Proposals 1, 2 and 4
 
                Constitute Appropriate Arrangements Under Section
 
                7106(b)(3)
 
    The Union contends that its proposals relate to a
 management-initiated change in conditions of employment and therefore
 are negotiable under section 7106(b)(3) of the Statute.  Specifically,
 the Union asserts that the proposals are intended to be appropriate
 arrangements for employees (namely, Mr. Batchelor) adversely affected by
 the exercise of management's rights, and cites the Authority's decision
 in National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986).  We find, however, that under
 the test articulated in Kansas Army National Guard, Proposal 1, 2, and 4
 do not constitute appropriate arrangements within the meaning of section
 7106(b)(3).  Even assuming that these proposals constitute
 "arrangements" for adversely affected employees, they are not
 "appropriate." Although the proposals would make it possible for Mr.
 Batchelor to continue his outside employment as a church orgainist, they
 would do so by eliminating management's discretion, under section
 7106(a)(2)(B), to determine when work assignments will be performed and
 its discretion, under section 7106(a)(2)(A), to hire and to assign
 employees.  We have consistently held that proposals which totally
 abrogate the exercise of management's rights excessively interfere with
 those rights and are not "appropriate arrangements" within the meaning
 of section 7106(b)(3) of the Statute.  International Plate Printers, Die
 Stampers and Engravers Union of North America, AFL-CIO, Local 2 and
 Department of the Treasury, Bureau of Engraving and Printing,
 Washington, D.C., 25 FLRA No. 9 (1987) (Provisions 6, 7 and 8).
 Accordingly, we find that Proposals 1, 2, and 4 are not appropriate
 arrangements under section 7106(b)(3).
 
                                VII.  Order
 
    The Union's petition for review is dismissed as to Proposals 1, 2 and
 4.
 
    Issued, Washington, D.C., April 2, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                DECISION AND ORDER ON PROPOSALS 3, 6, AND 7
 
                           Proposals 3, 6, and 7
 
          3.  Management maintain the former schedule, which established
       a set routine and allowed for persons to structure their lives and
       livelihoods accordingly.
 
          6.  Management allow Mr. Batchelor to work the fifth Sunday of
       the month plus all Saturdays.
 
          7.  Management allow Mr. Batchelor to work one fixed Sunday of
       each month plus all/majority of saturdays.
 
                       A.  Positions of the Parties
 
    The Union states that these proposals would be for the primary
 benefit of one employee, Mr. Batchelor, either by permitting him to
 maintain his existing schedule of working all Saturdays with all Sundays
 off or by assigning him to a new schedule of working only one Sunday a
 month.  The Union contends that any of these proposals would grant that
 employee the seniority status he is allowed under the master agreement
 and would allow him to retain his position as a church pianist.
 
    The Agency contends that all three proposals are contrary to its
 right to assign work under section 7106(a) and its right to establish
 and assign employees to tours of duty under section 7106(b)(1), a matter
 on which it has elected not to negotiate.  Additionally, the Agency
 contends that these proposals are not negotiable because they concern
 the equitable scheduling of Saturday and Sunday duty, a matter
 controlled by the master agreement and the local supplcmental agreement.
  The Agency also contends that these agreements prohibit midterm union
 bargaining proposals.
 
                        B.  Analysis and Conclusion
 
                            1.  Duty to Bargain
 
    When a union files a negotiability appeal under section 7105(a)(2)(E)
 of the Statute, section 7117(c) entitles it to a decision on the
 negotiability issues which are in dispute and are within the statutory
 authority of the Federal Labor Relations Authority to resolve.  To the
 extent that there are factual issues in dispute or to the extent that
 the parties disagree as to whether the matters are controlled by a
 master agreement and/or a local supplemental agreement, these issues
 should be resolved in other appropriate proceedings.  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, 306 n.6 (1984).
 Therefore, the Agency's contentions -- that these proposals are
 nonnegotiable because they concern the equitable scheduling of Saturday
 and Sunday duty, a matter controlled by the master agreement and the
 local supplemental agreement, and that these agreements prohibit
 mid-term bargaining proposals -- should be resolved in other appropriate
 proceedings.
 
                           2.  Management Rights
 
    The Agency requires work leaders to work on weekends.  In the
 circumstances of this case, two of the three work leaders rotated work
 on the Sunday shift and the third, Mr. Batchelor, worked only on
 Saturdays.  In response to employee complaints, the Agency changed this
 arrangement to require all three work leaders to rotate on the Sunday
 shift.  Proposals 3, 6, and 7 would, in essence, restrict the Agency's
 ability to assign Mr. Batchelor to the Sunday shift.
 
    As we recently stated, where more than one employee is qualified to
 perform the work of a position, a union may negotiate procedures for the
 selection of the particular employee who will perform that work.
 International Plate Printers, Die Stampers and Engravers Union of North
 America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
 Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987)
 (Provision 3).  There is nothing in the record in this case which
 indicates that the three employees involved are not equally qualified to
 perform the duties of a work leader.  Moreover, the Agency does not
 claim, for example, that there are particular duties which are only
 performed on Sundays and that in order for all work leaders to develop
 the skills to perform those duties it is necessary that they all rotate
 through the Sunday shift.  Thus, Proposals 3, 6, and 7 have the same
 effect as Provision 3 in Bureau of Engraving and Printing.  That
 provision required that particular individuals be assigned to a
 particular shift.  The Authority held that because the provision merely
 concerned when, or on which shift the employees would perform the work
 of their positions, it was within the duty to bargain.  Proposals 3, 6,
 and 7 in this case likewise merely concern which employee, among equally
 qualified employees, will be assigned to a particular weekend shift.
 For the reasons set forth in Bureau of Engraving and Printing,
 therefore, those proposals are within the duty to bargain.
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposals 3, 6, and 7.  /2/
 
    Issued, Washington, D.C., April 2, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                  Dissenting Opinion of Chairman Calhoun
 
    The proposals over which the Union seeks to bargain in this case
 followed the settlement of an unfair labor practice charge filed by the
 Union after the Agency instituted a change in the weekend work schedules
 of three work leaders.  Before the change, Mr. Batchelor was not
 required to work on Sundays;  Sunday work was performed by the other two
 work leaders.  The change, which required all three employees to work on
 Sundays on a rotational basis, was initiated by the Agency in response
 to a grievance filed by the other two employees which alleged that the
 Agency was unfairly distributing Sunday work.  Proposal 3 would require
 the Agency to rescind the change and reinstitute the former schedule.
 Proposals 6 and 7 would replace the new schedule with ones where Mr.
 Batchelor would work either the fifth Sunday of each month and all
 Saturdays, or one Sunday each month and the majority of Saturdays.
 
    In finding these proposals to be negotiable, the majority relies on
 its decision in International Plate Printers, Die Stampers and Engravers
 Union of North America, AFL-CIO, Local 2 and Department of the Treasury,
 Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9
 (1987).  I disagreed with the majority as to Provision 3 in Bureau of
 Engraving and Printing, stating that unlike provisions which establish
 general procedures to assign employees to shifts, provisions which
 compel the assignment of particular individuals to particular shifts
 conflict, in my view, with an agency's right to assign work.  Proposals
 3, 6 and 7 in this case would also require the Agency to assign specific
 individuals to specific tours of duty.  In National Treasury Employees
 Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), the court stated that
 "the right to determine what work will be done, and by whom and when it
 is to be done, is at the very core of successful management of the
 employer's business." In my view, Proposals 3, 6 and 7, like Provision 3
 in Bureau of Engraving and Printing, would enable the Union to interfere
 with the Agency's management of its business and are nonnegotiable.
 
    Moreover, I would also find that these proposals do not constitute
 appropriate arrangements under section 7106(b)(3) of the Statute.  Under
 section 7106(b)(3), agencies and unions may negotiate appropriate
 arrangements for employees adversely affected by the exercise of any
 authority under section 7106 by management officials.  See National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986).  As is true under the Statute in
 general, negotiations under section 7106(b)(3) must relate to unit
 employees' conditions of employment.  See generally Antilles
 Consolidated Education Association and Antilles Consolidated School
 System, 22 FLRA No. 23 (1986).
 
    These proposals, however, are not appropriate arrangement within the
 meaning of section 7106(b)(3).  While the proposals would change Mr.
 Batchelor's hours of work, the adverse effect that the Proposals are
 intended to ameliorate is unrelated to his conditions of employment;
 rather, the adverse