27:0052(13)NG - AFGE Local 1738, and VA Medical Center, Salisbury, NC -- 1987 FLRAdec NG



[ v27 p52 ]
27:0052(13)NG
The decision of the Authority follows:


 27 FLRA No. 13
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1738
 Union
 
 and
 
 VETERANS ADMINISTRATION 
 MEDICAL CENTER, SALISBURY, 
 NORTH CAROLINA
 Agency
 
                                            Case No. 0-NG-1070
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  It raises issues
 concerning the negotiability of eight proposals.  In its response to
 this negotiability appeal the Agency withdrew its allegation of
 nonnegotiability as to one additional proposal.  Accordingly, it will
 not be considered.  We also note that the Union, in its reply brief,
 claimed that the disputed matters were contained in a supplemental
 agreement and were disapproved by the Agency head.  However, the parties
 otherwise consistently refer to the disputed matters as proposals and we
 find nothing in the record to support the Union's claim.  Thus, we will
 treat the disputed matters in this decision as proposals and not
 provisions which were disapproved under section 7114(c) of the Statute.
 
                              II.  Proposal 1
 
          The president of the union will be advised should the agency
       decide to establish an investigatory or fact-finding committee
       affecting bargaining unit employees.  The employer agrees to
       consider qualified employees nominated by the union for
       appointment to the committee.
 
                       A.  Positions of the Parties
 
    The Agency alleges that Proposal 1 does not concern conditions of
 employment of bargaining unit employees.  The Agency also alleges that
 the proposal is inconsistent with management's rights under section
 7106(a)(1) of the Statute to determine the mission, organization, and
 internal security practices of the Agency and with the right to
 discipline under section 7106(a)(2)(A) because the proposal requires
 Union participation in the Agency's substantive decision-making process.
  Furthermore, the Agency contends that the proposal is inconsistent with
 38 U.S.C. Section 3305 and its implementing regulation, 38 CFR Section
 17.500-17.540 which concern the VA's Medical Quality Assurance Program.
 /1/
 
    The Union argues that Proposal 1 merely requires that qualified
 employees recommended by the Union be considered for appointment to
 investigative or fact-finding committees established by management.
 
                        B.  Analysis and Conclusion
 
    Contrary to the Agency's position, since this proposal expressly
 applies only to matters affecting bargaining unit employees it does
 concern conditions of employment of such employees.
 
    However, it is by now well established that proposals seeking union
 participation in the deliberative process leading to the exercise of
 rights reserved to management by section 7106 of the Statute are
 nonnegotiable.  See National Federation of Federal Employees, Local 1431
 and Veterans Administration Medical Center, East Orange, New Jersey, 9
 FLRA 998 (1982) and the cases cited there.  In VA Medical Center, East
 Orange, the Authority observed at 9 FLRA 999 that "when management
 establishes formal organizational structures to undertake such
 deliberations as an integral part of its substantive decision-making
 process, a proposal which would require union participation would have
 the effect of directly interfering with management's statutory right to
 make the decisions involved."
 
    The Agency argues without contravention that investigatory or
 fact-finding committees affecting bargaining unit employees consider
 such matters, among others, as the organization and staffing of the
 Medical Center, the assignment of work to employees, and the equipment
 and supplies utilized in the Medical Center, all matters which involve
 the exercise of management's rights under section 7106 of the Statute.
 /2/
 
    Nevertheless, we find that Proposal 1 is negotiable because it only
 requires the Agency to consider the appointment of Union nominated
 individuals to such committees.  As such, it does not require Union
 participation in management's substantive decision-making process and
 would not involve the Union in the Agency's deliberative process.  Thus,
 Proposal 1 would not interfere with any of the management rights relied
 upon by the Agency.  See International Federation of Professional and
 Technical Engineers, Local 4 and American Federation of Government
 Employees, Local 2024, AFL-CIO and Department of the Navy, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire, 14 FLRA 52 (1984).  In
 addition, since the proposal does not require Union participation on any
 management committee it would not require the disclosure of confidential
 information to the Union in violation of law.
 
                             III.  Proposal 5
 
          When an agency investigation of Bargaining Unit employees is
       concluded and the results of the investigation could impact upon
       Bargaining Unit employees, the union will be made aware of the
       conclusion and the results of the investigation immediately after
       they are known.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 5 does not concern conditions of
 employment under section 7103(a)(14) of the Statute because not all
 investigations involve matters pertaining to conditions of employment.
 The Agency refers to investigations concerning employee misconduct, law
 enforcement, indebtedness to the V.A., damage to Government property,
 and V.A. benefits, among others as examples.  It also contends that
 Proposal 5 is inconsistent with law, 38 U.S.C. Section 3305, and with
 applicable Government-wide regulations, 38 CFR Section 17.500.-17.540.
 The Agency further argues that the proposal interferes with its right to
 determine its internal security practices under section 7106(a)(1) of
 the Statute.
 
    The Union claims that Proposal 5 does not involve investigation of
 unlawful or illegal activities of bargaining unit employees.  Further,
 according to the Union, the proposal does not require disclosure of
 confidential information to the Union but merely that the Union be
 generally informed of the results of any investigation, only to the
 extent consistent with law or regulations.
 
                        B.  Analysis and Conclusion
 
    Proposal 5 requires that the results of any investigations which
 could have an impact on bargaining unit employees be released
 immediately to the Union upon completion of the investigation.  There is
 nothing in the express language of Proposal 5 which supports the Union's
 claim that it was not intended to apply to investigations of employee
 misconduct, unlawful activities or preclude the disclosure of
 confidential information.  Rather, the language of the proposal includes
 no limitations as to the type of investigation results the Union would
 be immediately informed of as long as the results affected bargaining
 unit employees.
 
    This proposal is to the same effect as section (b) of the proposal
 found nonnegotiable in National Federation of Federal Employees, Local
 1300 and General Services Administration, 18 FLRA 789, 795-97 (1985).
 That section prescribed conditions for providing to an employee being
 investigated or to the employee's union representative, regular progress
 reports of the investigation.  The Authority found that management's
 right under section 7106(a)(1) to determine its internal security
 practices included the right to determine the nature and extent of the
 information concerning an investigation which it would disclose, and to
 whom it would disclose that information.  Thus, the Authority concluded
 that as section (b) prescribed the conditions under which such
 information would be disclosed, it directly interfered with management's
 right to determine its internal security practices under section
 7106(a)(1).  Compare National Treasury Employees Union and Department of
 the Treasury, U.S. Customs Service, 9 FLRA 983, 987 (1982) (The
 provision requiring employees to be notified as soon as practicable of
 written non-criminal complaints was found to be negotiable.  The
 provision reserved management's rights to control the timing to the
 notice and to not disclose confidential information).
 
    In the present case, the proposal requires the Union to be notified
 immediately after the results of an investigation are known to
 management.  As previously noted, there is nothing in the language of
 this proposal which permits management to determine the nature and
 extent of the information which will be disclosed or to whom it will
 disclose that information or even to determine the timing of such
 disclosure.  Thus, based on General Services Administration, and the
 cases cited in that decision, we conclude that Proposal 5 interferes
 with management's right to determine its internal security practices
 under section 7106(a)(1).  In view of this determination it is
 unnecessary to address the Agency's other contentions.
 
                          IV.  Proposals 2 and 6
 
                                Proposal 2
 
          Bargaining Unit employees will be clearly informed of the
       supervisors and/or management officials who have authority to
       supervise their performance and/or on-the-job conduct.  In the
       absence of an employee's involvement in a serious violation of
       agency regulation, unsafe or actual criminal offense which
       obviously requires immediate action, he/she will not be subjected
       to counseling or impromptu correcting admonishments by persons
       other than their designated supervisors.
 
                                Proposal 6
 
          Unit employees may request leave for durations for 8 hours or
       less from their immediate supervisors.
 
                       A.  Positions of the Parties
 
    The Agency contends that because Proposals 2 and 6 concern duties
 assigned to managers and supervisors the proposals do not concern
 conditions of employment of bargaining unit employees and in addition,
 violate management's rights to assign employees and to assign work under
 sections 7106(a)(2)(A) and 7106(a)(2)(B) of the Statute.  Furthermore,
 the Agency contends that Proposal 2 violates management's right to
 discipline under section 7106(a)(2)(A).  The Union argues that Proposals
 2 and 6 are negotiable procedures under section 7106(b)(2) of the
 Statute.
 
                        B.  Analysis and Conclusion
 
    The first sentence of Proposal 2 merely provides that bargaining unit
 employees will be clearly informed of which personnel within the Agency
 will exert supervisory authority over them.  The Agency has not in any
 manner indicated how a requirement that it inform employees as to which
 Agency personnel would exert supervisory authority over employees
 interferes with management's rights to assign employees or to assign
 work.  In fact, the Agency states that it would have no objection to the
 negotiablity of a proposal limited to that result.  Statement of
 Position at 6.  Accordingly, and contrary to the Agency's claims, we
 find that the first sentence of Proposal 2 does not violate management's
 rights to assign employees or to assign work.  Rather, the first
 sentence is a negotiable procedure under section 7106(b)(2).  See
 American Federation of Government Employees, AFL-CIO, Local 1999 and
 Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
 Jersey, 2 FLRA 152, 155 (1979), enforced sub nom. Department of Defense
 v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
 cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
 
    In agreement with the Agency, we find that the balance of Proposal 2
 violates management's right to assign work.  Specifically, and except
 for certain limited circumstances, the balance of Proposal 2 expressly
 precludes the Agency from assigning specified tasks to personnel other
 than the employee's designated supervisor.
 
    In this connection, the Authority has consistently held that
 management's right to assign work under section 7106(a)(2)(B)
 encompasses the right to assign specific duties to particular
 individuals, including management officials, and that provisions which
 interfere with this right are nonnegotiable.  For example, National
 Association of Government Employees, AFL-CIO, Local R14-87 and
 Department of the Army and the Air Force, Kansas Army National Guard, 19
 FLRA 381 (1985);  American Federation of Government Employees, AFL-CIO,
 Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), aff'd
 mem. sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10,
 1985).  Since the balance of Proposal 2 expressly concerns the
 assignment of specified tasks to management or supervisory personnel it
 is nonnegotiable for the above reasons.  In view of this determination
 it is unnecessary to address the Agency's other contentions concerning
 the negotiability of the balance of Proposal 2.
 
    Although the balance of Proposal 2 substantively interferes with
 management's right to assign work under section 7106(a)(2)(B) and thus,
 does not constitute a negotiable procedure under section 7106(b)(2), the
 defect could be cured if the requirement to assign specified tasks to a
 particular individual was deleted.
 
    However, we disagree with the Agency's contention concerning Proposal
 6.  This proposal simply provides that bargaining unit employees may
 request leave from their immediate supervisors.  The proposal does not
 require an immediate supervisor to act on that request.  Unlike Proposal
 2, Proposal 6 does not require that any particular duties be assigned to
 an employee's supervisor and it does not prohibit the assignment of
 duties to other personnel.  Therefore, it does not conflict with the
 Agency's right to assign employees and work.  It is a negotiable
 procedure under section 7106(b)(2) of the Statute.
 
                              V.  Proposal 7
 
          Employees selected for reassignment will be permitted to assume
       the duties of his/her new position within two weeks, barring a
       compelling need to delay the assignment.  Any delay will be fully
       explained to the affected employee and to the union.
 
                       A.  Positions of the Parties
 
    The Agency asserts that Proposal 7 is inconsistent with management's
 right to assign employees and assign work under section 7106(a)(2)(A)
 and section 7106(a)(2)(B) of the Statute, respectively.  The Union
 argues that the proposal concerns working conditions of bargaining unit
 employees and that it is a negotiable procedure under section 7106(b)(2)
 of the Statute.
 
                        B.  Analysis and Conclusion
 
    The Agency retains discretion under section 7106(a)(2)(A) to
 establish the requirements of a position, that is, the qualifications
 and skills needed to do the work.  It also retains the discretion to
 determine which employees will be assigned.  See American Federation of
 Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enf'd as
 to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140
 (D.C. Cir. 1981), cert. denied sub nom. American Federation of
 Government Employees, AFL-CIO v. FLRA, 455 U.S. 945 (1982).  In this
 case, Proposal 7 does not interfere with the Agency's right to assign
 employees under section 7106(a)(2)(A) because the proposal concerns
 employees already selected by management for assignment.
 
    However, Proposal 7 would require in most circumstances that an
 employee selected for reassignment assume the duties of the new position
 within two weeks.  The Authority has held that management's right to
 assign work under section 7106(a)(2)(B) includes the discretion "to
 determine when the work which has been assigned will be performed."
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. NTEU v. FLRA,
 692 F.2d 553 (D.C. Cir. 1982).  Proposal 7 effectively eliminates
 management's discretion to determine when the work which has been
 assigned will be performed.
 
    Because Proposal 7 substantively interferes with management's right
 to assign work under section 7106(a)(2)(B), it is not a negotiable
 procedure under section 7106(b)(2) of the Statute.  See Wright-Patterson
 Air Force Base, Ohio, 2 FLRA 604 (1980).
 
                              VI.  Proposal 8
 
       It is the responsibility of management to staff areas to the
       extent practicable in such a manner as is conducive to the health
       and safety of employees.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal is inconsistent with
 management's right to determine the number of employees assigned to any
 organizational subdivision, work project, or tour of duty under section
 7106(b)(1) of the Statute.  The Union argues instead that Proposal 8
 establishes a general nonquantitative requirement which is within the
 Agency's duty to bargain.
 
                        B.  Analysis and Conclusion
 
    The Statute provides under section 7106(b)(1) that an agency may
 negotiate at its election on the number of employees assigned to any
 work project or tour of duty.  Proposal 8 would require management to
 staff work areas to the extent practicable for health and safety
 reasons.  In National Federation of Federal Employees, Local 1167 and
 Department of the Air Force, Headquarters, 31st Combat Support Group
 (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced
 sub nom. NFFE Local 1167 v. FLRA, 681 F.2d 896 (1982), the Authority
 concluded that Proposal 6 in that case which precluded management from
 assigning just one employee in certain work situations because of health
 and safety considerations directly interfered with management's right
 under section 7106(b)(1) to determine the number of employees assigned
 to any work project or tour of duty.  Similarly, in this case Proposal 8
 interferes with management's right under section 7106(b)(1) to determine
 the number of employees assigned to any work project or tour of duty.
 
    Thia analysis is not changed by the Union's argument that the term
 "to the extent practicable" establishes a general nonquantitative
 standard.  That is, the plain language of the proposal would interfere
 with management's discretion to determine the number of employees
 required to do the work.  See American Federation of Government
 Employees, AFL-CIO, Local 3483 and Federal Home Loan Board, New York
 District Office, 13 FLRA 446, 450-52 (1983) (rejecting the union's
 contention that the phrase "to the extent practicable" removes a
 substantive limitation that the proposal would have placed on the
 agency's right to identify critical elements) and American Federation of
 Government Employees, AFL-CIO, National Border Patrol Council and
 Department of Justice, Immigration and Naturalization Service, 16 FLRA
 251, 252 (1984) (rejecting the union's contention that the phrase "to
 the maximum extent possible" leaves the agency with discretion to
 exercise its right to assign work "without inhibition").  Accordingly,
 we hold that Proposal 8 interferes with management's rights under
 section 7106(b)(1).
 
    Of course, the matters set out in section 7106(b)(1) may be
 negotiated at an agency's election.  Once such matters have been
 negotiated into an executed agreement an agency cannot disapprove them
 pursuant to its review of the agreement under section 7114(c) of the
 Statute.  National Association of Government Employees, Local R4-75 and
 U.S. Department of the Interior, National Park Service, Blue Ridge
 Parkway, 24 FLRA No. 7 (1986) (Provision 4).  Thus, if the parties in
 this case had executed a negotiated agreement which contained the
 disputed language the Agency could not properly disapprove that language
 under its section 7114(c) review.
 
                             VII.  Proposal 9
 
    The FLRA Members disagree over the negotiability of this proposal.
 The decision and order on Proposal 9 and Chairman Calhoun's dissent
 immediately follow this decision.
 
                            VIII.  Proposal 10
 
          A.  When emergency situations arise such as severe weather
       conditions or other mass emergencies that delay or prohibit
       employees from coming to work the Medical Center Director may
       excuse employees, where those employees make a reasonable effort
       to get to work and are unable to do so.
 
          B.  The amount of time excused will depend on such factors as
       the severity of the emergency situation and whether or not the
       tardiness or absence was reasonably avoidable.
 
          C.  The Medical Center Director will not make a decision on the
       amount of time to be excused without prior consultation with the
       President of the Union or his designee.
 
                       A.  Positions of the Parties
 
    The Agency asserts that the proposal would interfere with
 management's right "to take whatever actions may be necessary to carry
 out the agnecy mission during emergencies" under section 7106(a)(2)(D)
 of the Statute, and with management's right to assign work to employees
 under section 7106(a)(2)(B) of the Statute.  The Agency also asserts
 that the proposal conflicts with an Agency regulation for which there is
 a compelling need under section 7117(a)(2) of the Statute.  The Agency
 interprets the proposal as involving the union in internal management
 deliberations.  The Union argues that the proposal does not interfere
 with management's rights and that the proposal does not conflict with an
 Agency regulation for which there is a compelling need.
 
                        B.  Analysis and Conclusion
 
    Paragraphs A and B would establish the various factors management
 would consider in deciding whether to grant excused leave in situations
 where an employee is delayed or prohibited from coming to work due to
 emergencies such as those arising from severe weather conditions.
 Paragraph C requires the Agency to consult with the President of the
 Union or his designee prior to deciding on the amount of time an
 employee would be excused.  It is clear from the record that the
 proposal only pertains to emergency situations when an employee is
 already unavoidably delayed or unable to come to work.  It does not
 remove an employee's obligation to be at work during emergency
 situations.  As such, it does not interfere with management's rights
 under either section 7106(a)(2)(B) or section 7106(a)(2)(D) of the
 Statute.
 
    The Agency contends that the proposal conflicts with an Agency
 regulation for which there is a compelling need, namely, VA Manual MP-5,
 Part I, Chapter 630.  The Agency's contention is without merit.  The
 cited regulations provide that excused absences may be granted in only
 very rare circumstances because all employees at medical facilities are
 deemed to be providing critical services.  The proposal does not require
 the Agency to excuse employees from work.  Instead, Paragraphs A and B
 only establish factors management would consider in granting excused
 absences in certain emergency situations.  Furthermore, the regulation
 itself delegates discretionary authority to local managers to grant
 excused absences in certain emergency situations.  Thus, a proposal
 concerning the factors management will consider in implementing its
 discretionary authority to grant excused absences is entirely consistent
 with the Agency's own regulation.
 
    Finally, as to Paragraph C, we note it only requires the Agency to
 consult with the Union prior to making a decision on the amount of time
 that will be excused in certain emergency situations.  There is nothing
 in the record in this case which indicates that the term "consultation"
 as used in Paragraph C has a meaning other than that normally ascribed
 to it, that is, to meet and discuss a matter but not to negotiate on it.
  See, for example, section 7113 (b) of the Statute;  Roberts' Dictionary
 of Industrial Relations 126 (3d ed. 1986).  In our opinion, Paragraph C
 constitutes nothing more than a vehicle by which the Union can offer its
 nonbinding views on the granting of excused absences before the Agency
 actually deliberates and makes a decision on that matter.  Thus,
 Paragraph C does not involve the Union in the Agency's deliberative
 process.
 
    In conclusion, we find that Proposal 10 does not interfere with
 management's rights under section 7106(a)(2)(B) or section
 7106(a)(2)(D).  Further, the proposal does not conflict with an Agency
 regulation for which a compelling need has been established under
 section 7117(a)(2) of the Statute.
 
                                IX.  Order
 
    The Union's petition for review as to the second sentence of Proposal
 2 and Proposals 5, 7, and 8 is dismissed.  The Agency must bargain upon
 request (or as otherwise agreed) on Proposal 1, the first sentence of
 Proposal 2 and Proposals 6 and 10.  /3/
 
    Issued, Washington, D.C., May 20, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                     DECISION AND ORDER ON PROPOSAL 9
 
       Proposal 9
 
          If the employer decides to fill vacant positions, they will do
       so as soon as practicable when the staff shortages create an undue
       hardship on unit employees.
 
                       A.  Positions of the Parties
 
    The Agency asserts that Proposal 9 interferes with managment's right
 to determine the number of employees assigned to an organizational
 subdivision, work project or tour of duty under section 7106(b)(1), and
 management's right to assign employees and to assign work under section
 7106(a)(2)(A) and (B) of the Statute, respectively.  The Union argues
 that the proposal does not compel the Agency to fill any position at any
 particular time.
 
                        B.  Analysis and Conclusion
 
    The effect of the proposal is that once management has decided to
 fill vacant positions, it will make a selection "as soon as practicable"
 when staff shortages create an undue hardship on unit employees.  As
 such, contrary to the Agency's position, the proposal would not require
 management to fill any vacant position that it had not already decided
 to fill or establish a particular time within which the vacant position
 must be filled.  Also, this proposal does not establish the number of
 employees necessary to avoid hardship to unit members.  Thus, based upon
 the plain language of the proposal and the Union's stated