30:0400(52)NG - AFGE Local 85 and VA Medical Center, Leavenworth, KS -- 1987 FLRAdec NG



[ v30 p400 ]
30:0400(52)NG
The decision of the Authority follows:


 
30 FLRA NO. 52
 30 FLRA 400

 08 DEC 1987


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85

                   Union

         and

VETERANS ADMINISTRATION
MEDICAL CENTER
LEAVENWORTH, KANSAS

                   Agency

Case No. 0-NG-1302

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)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of 11 proposals. 1

     For the reasons that follow, we find that Proposals 1 and 2
are not properly before us and that Proposals 4 thru 11 are
nonnegotiable. We find that Proposal 3 is negotiable.

     II. Proposals 1 and 2

     Proposal I

     Article IX - Use of Official Facilities

     Section 5. The employer agrees to provide mail service to
all union officers/steward via the inter-office mail system and
if addressed to an individual by name it will not be opened
except by the addressee. 

     Proposal 2

     Article XII - Investigations, Discipline and Adverse
Actions

     In circumstances that do not warrant immediate action, the
employee will be informed that a disciplinary/adverse action is
proposed. In this case and when the employee requests a meeting,
the employee and/or their designated Local representative shall
be informed why the action was proposed against him/her and given
the opportunity to present their side of the case, management
will carefully consider the employee's/representative's views
and, if as a result of this presentation, management decides to
change or alter the proposed disciplinary/ adverse action, the
employee and/or their representative will be so informed. When
the employee requests such a meeting, any delay resulting from
the scheduling of this meeting shall not adversely affect the
timeliness required by the Master Agreement, Article 12, Section
4.

     A. Positions of the Parties

     The Agency argues that these proposals are in conflict with
the Master Agreement and that the interpretation of provisions of
the Master Agreement should be accomplished through procedures
other than the negotiability appeal process.

     The Union claims that the intent of Proposal 1 is to ensure
privacy and security of mail sent through the inter-office mail
system. The Union claims that Proposal 2 merely establishes
procedures to be followed by management.

     B. Analysis and Conclusion

     The Agency contends only that the subject matter of these
proposals is covered by the parties' agreement and that there is
no duty to bargain. The Agency does not argue that these
proposals are inconsistent with law, rule or regulation.

     Under section 2424.1 of our Regulations, we consider a
petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is
inconsistent with law, rule or regulation. This case, as noted
above, does not involve whether Proposals 1 and 2 are
inconsistent with law, rule or regulation. Therefore, there are
no issues properly before the Authority as to Proposals 1 and 2
in this negotiability proceeding. The conditions governing review
of negotiability issues, as described in section 2424.1 of our
Regulations, have not been met. Moreover, the disputed issues
concerning Proposals 1 and 2--whether the subject matter of those
proposals is covered by the parties' agreement so as to give rise
to a duty to bargain--should be resolved in other appropriate
proceedings, such as the parties' negotiated grievance procedure
or the unfair labor practice procedures under section 7118 of the
Statute. Therefore, we will dismiss the Union's petition for
review as to those proposals, without prejudice to the Union's
right to file a negotiability appeal if the conditions governing
review of negotiability issues are met and if the Union chooses
to file such an appeal. American Federation of Government
Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA 
768 (1987).

     III. Proposal 3

     Article XV - Overtime

     Section 1. In the assignment of scheduled overtime, the
employer agrees to provide the employee at least two (2) days
advance notice to allow for readjustment of personal commitments.
Any employee designated to work scheduled overtime on days
outside his/her basic workweek will be notified not later than
two (2) days before the end of his/her basic workweek. When
overtime work is to be performed on a holiday, similar advance
notice will be given. For purposes of this section all overtime
not scheduled shall be considered emergency as defined in the
Hours of Work Article, Section 3.

     A. Positions of the Parties

     The Agency argues that this section is inconsistent with 5
C.F.R. 610.121(b)(2) because it prevents the Agency Head from
revising an employee's work schedule unless he or she became
aware of the need for overtime not less than 2 days prior to its
scheduling.

     The Union argues that this section: (1) does not violate the
Statute; (2) concerns conditions of employment; (3) does not
prevent management from assigning overtime; and (4) merely
attempts to negotiate on the impact and implementation of the
exercise of a management right.

     B. Analysis and Conclusion

     Contrary to the Agency's argument, we find that this
proposal does not limit the Agency's ability to change basic work
schedules under 5 C.F.R. 610.121. Rather, this proposal merely
requires that the Agency give employees 2 days' advance notice of
scheduled overtime assignments.

     The Agency has made no claim that it would have insufficient
knowledge of the need for overtime so that meeting the proposal's
2-day notice requirement would in any way prevent it from
requiring that the overtime work be accomplished. Moreover, there
is nothing in the proposal or in the record which indicates that
the Agency would in any manner be limited in assigning overtime
work in circumstances where the Agency did not provide the 2
days' advance notice because the Agency did not have knowledge of
the need for overtime more than 2 days in advance. Furthermore,
the last sentence of this proposal indicates that in the
circumstance where the Agency did not provide 2 days' advance
notice of a scheduled overtime assignment, the overtime
assignment merely would be considered emergency overtime. We
note, however, that the Union may not negotiate the definition of
an emergency (see our decision concerning the last paragraph of
Proposal 10 in this case). We note further that the Union may not
negotiate a proposal which provides that emergency overtime is
not "compulsory" (see our discussion concerning Proposal 5 in
this case).

     Since the Agency has not established that this proposal
would prevent it from assigning work, the proposal is a procedure
negotiable under section 7106(b)(2) of the Statute. See American
Federation of Government Employees, AFL - CIO,. Local 2272 and
Department of Justice, U.S. Marshals Service, District of
Columbia, 9 FLRA  1004 (1982) (Proposal 11 requiring a 48-hour
notice of assignments to details found to be a negotiable
procedure under section 7106(b)(2)).

     IV. Proposal 4

     Article XV - Overtime

     Section 2. Higher graded employees shall not be used to
perform functions below their grade level  on overtime
unless a lower graded employee is not available. Lower graded
employees shall not be used to perform functions above their
grade level on overtime unless their capabilities for the work to
be done warrant performance of overtime and a higher graded
employee is not available. Employees either in training or on
detail may be considered for overtime in either the training/
detail and/or their primary work area.

     A. Positions of the Parties

     The Agency argues that this section conflicts with
management's right to assign work under section 7106(a)(2)(B) of
the Statute because it would prohibit the assignment of duties
performed by employees in one grade level from being performed by
employees in lower grade levels.

     The Union claims that this section does not prevent
management from assigning work and that its intention is to
prevent the misuse of personnel. The Union also claims that this
proposal concerns the impact and implementation of the exercise
of a management right.

     B. Analysis and Conclusion

     We have held that proposals which establish conditions on
management's ability to exercise its right to assign work
infringe on that right and, therefore, are outside the duty to
bargain. American Federation of Government Employees, Local 2182,
AFL - CIO and Propulsion Laboratory, U.S. Army Research and
Technology Laboratories, 26 FLRA  600 (1987) (Provision 4). Also,
we have held that the right to assign work to employees under
section 7106(a)(2)(B) of the Statute includes the right to
determine the particular qualifications and skills needed to
perform the work and to make judgments in determining whether a
particular employee meets these qualifications. Fort Knox
Teachers Association and Fort Knox Dependent Schools, 25 FLRA 
1119 (1987).

     We find that Proposal 4 would make the assignment of
overtime work conditional on the availability of lower or higher
graded employees. It would deprive management of its right to
assign work to higher graded employees when lower graded
employees are available, and vice versa, without any type of
consideration as to the employees' qualifications to perform the
designated tasks. Consequently, we find this proposal to be
outside the duty to bargain because it violates management's
right to assign work and employees under section 7106(a)(2)(B) of
the Statute.

     V. Proposal 5

     Article XV - overtime

     Section 6. Emergency overtime shall not be compulsory,
except when official requirements must be met. If overtime is
necessary, available volunteers will be asked first. If
sufficient volunteers are not available or no volunteers, reverse
seniority shall be used. Failure of the employer to properly
notify the employee of overtime requirements shall relieve the
employee of the obligation to work overtime.

     A. Positions of the Parties

     The Agency argues that this section interferes with the
Agency's right to assign work and employees under section
7106(a)(2)(A) and (B) of the Statute because it would compel the
Agency to select volunteers for overtime regardless of whether or
not they are capable of performing the work.

     According to the Union, the intent of this section is to
ensure that there would be assistance during normal non-duty
hours. The Union also argues that the proposal sets out the
rights of the employees and management on how a situation could
be handled.

     B. Analysis and Conclusion

     The first sentence of this proposal is to the same effect as
Provision 8 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  113 (1987). Provision 8 provided that
overtime would not be assigned on a compulsory basis unless there
were unusually heavy workloads. We found that the provision
prevented management from assigning overtime work to particular
employees under certain circumstances. Similarly, the first
sentence of this proposal prevents management from requiring
employees to work overtime in all but one circumstance. Thus,
based on Bureau of Engraving and Printing, we find this sentence
to be outside the duty to bargain.

     The next two sentences, read together, provide that overtime
will be assigned first to volunteers and then, if 
insufficient volunteers exist, to nonvolunteers based on inverse
seniority. It is well established that the right to assign work
includes the right to determine the particular qualifications and
skills necessary to perform the work and the right to make
judgments in determining whether particular employees meet those
qualifications. See, for example, Fort Knox Dependent Schools. It
also is clear that proposals which provide a procedure for
selecting the particular employee who will perform the work from
a group of employees who are determined to be qualified are
negotiable. See, for example, Bureau of Engraving and Printing
(Provisions 5 and 9).

     In this case, however, there is nothing in the language of
the proposal or in the record which indicates that management
would be able to make qualification determinations when assigning
overtime. Rather, the second and third sentences would result in
overtime being assigned solely according to the requirements set
out in those sentences. Thus, by precluding management from
taking into account valid considerations in making overtime
assignments, the second and third sentences are inconsistent with
management's right under section 7106(a)(2)(B) to assign work.
See American Federation of Government Employees, Local 32 and
Office of Personnel Management, 26 FLRA  612 (1987) (Proposal
3).

     We also find that the last sentence of this proposal
infringes on management's right to assign work because it limits
management's ability to assign overtime work. The last sentence
removes an employee's obligation to perform the assigned overtime
duties unless he or she had been notified in advance. By so doing
this sentence deprives the Agency of its right to assign work
unless the required notification had taken place. Consequently,
this sentence infringes on management's right and is, thus,
outside the duty to bargain. See Bureau of Engraving and Printing
(Provision 8).

     VI. Proposal 6

     Article XV - Overtime

     Section 7. Unless a subsequent emergency arises when an
employee is recalled in an emergency situation, he/she will be
released upon completion of the emergency assignment (as defined
in Hours of Work Article, Section 3).

     A. Positions of the Parties

     The Agency argues that this section conflicts with
management's right to assign work pursuant to section
7106(a)(2)(B) because it would limit the Agency's right to assign
particular duties during callback overtime other than duties
related to the emergency situation.

     The Union argues that the intent of this section is to
prevent abuse of employees called back on overtime status, and
that the proposal merely sets out how a particular situation
would be handled.

     B. Analysis and Conclusion

     Proposal 6 is to the same effect as the proposal found
nonnegotiable in National Federation of Federal Employees, Local
1380 and Department of the Navy, Naval Coastal Systems Center,
Panama City, Florida, 11 FLRA  129 (1983). The proposal there
provided, in pertinent part, that employees called back to work
when an emergency occurred would only work on the emergency for
which they were called back. The Authority found that such a
proposal imposed a limitation on management's right to assign
particular duties during call-back overtime to duties other than
those related to the emergency situation. Accordingly, it
constituted a direct interference with the Agency's right to
assign work pursuant to section 7106(a)(2)(B) of the Statute.
Thus, based on Naval Coastal Systems Center, we find that this
proposal also constitutes an interference with management's right
to assign work under section 7106(a)(2)(B) and is, therefore,
outside the duty to bargain.

     VII. Proposal 7

     Article XXIV - Health, Safety and Environment

     Section 1. It is agreed that the union and management shall
have equal representation on the Medical Center Safety Committee,
and ad hoc committees formed from or by the committee, and any
committees formed during the life of this agreement relating to
health, safety and environment impacting on the bargaining
unit.

     A. Positions of the Parties

     The Agency argues that this proposal conflicts with its
right under section 7106(a)(2)(B) to assign work because it 
8] requires that half of the membership of an internal management
committee be union members. In support, the Agency relies on
American Federation of Government Employees, AFL - CIO, Local
2786 and Defense Mapping Agency, 20 FLRA  193 (1985) (Proposal 3)
where the Authority found nonnegotiable a proposal which
established a joint labor-management safety and health
committee.

     The Union disputes the Agency's claim that Proposal 7
violates the Agency's right to assign work. Rather, the Union
argues that its right to representation is established by law,
including Executive Order (E.O.) 12196. Finally, the Union argues
that management still maintains its right to assign, hire and
direct employees within reasonable bounds.

     B. Analysis and Conclusion

     In National Treasury Employees Union and Department of the
Treasury, Bureau of Government Financial Operations, 21 FLRA  652
(1986) the Authority determined that when an agency health and
safety committee is "certified" by the Secretary of Labor under
E.O. 12196 the agency may avoid unannounced inspections by the
Occupational Safety and Health Administration. The Authority also
noted that under E.O. 12196 such "certified" health and safety
committees must provide for union representation. In this case,
however, based on the Agency's uncontested arguments, the Medical
Center Safety Committee on which the Union seeks equal
representation is not intended to be "certified" by the Secretary
of Labor under E.O. 12196. Rather, the Medical Center Safety and
Health Committee in this case was established by internal Agency
regulations and is an "uncertified" safety and health committee.
Statement of Position at 21. Thus, the law and regulations
applicable to "certified" safety and health committees as set out
in Bureau of Financial Operations, including the provisions
concerning union representation, are not relevant in this case.

     According to the Agency, the purpose of the Medical Center
Safety Committee in this case is to periodically review the
progress of the health and safety program, identify problem areas
and accident cause factors and recommend ways of improving the
safety program. Among other things, the committee is empowered to
conduct such physical inspections it deems necessary with the
authority to take immediate corrective action on safety hazards
that are noted. 

     Under Authority decisions, proposals establishing joint
labor-management "uncertified" safety and health committees to
provide a forum for the expression of concerns over safety and
health matters have been found to be negotiable. See, for
example, National Federation of Federal Employees, Local 2059 and
U. S. Department of Justice, U. S. Attorney's Office, Southern
District of New York, New York, New York, 22 FLRA  136 (1986)
(Provision 1). On the other hand, proposals which would enable a
union to interject itself into the deliberative process by which
management exercises its rights, including those related to
safety and health matters, have been found nonnegotiable. Defense
Mapping Agency.

     In our view, based on the Agency's uncontested claims, the
Medical Center Safety Committee on which the Union seeks equal
representation does not merely constitute a forum for the
expression of concerns over health and safety matters. Rather,
the Medical Center Safety Committee in this case is a body
established by the Agency to carry out its safety and health
responsibilities. Thus, the tasks associated with carrying out
the functions of the Medical Safety and Health Committee involves
the assignment of work under section 7106(a)(2)(B). Consequently,
Proposal 7 is not within the duty to bargain.

     In so holding, we note that Proposal 7 is distinguishable
from the proposal at issue in National Federation of Federal
Employees, Local 1256 and K. I. Sawyer Air Force Base, Michigan,
29 FLRA  No. 13 (1987) (Provision 3) slip op. at 4. In Sawyer Air
Force Base, we held that Provision 3, which provided for union
representation on the Safety and Health Committee, was within the
duty to bargain. Provision 3 clearly established the purpose of
the committee as "to advise the Commander on occupational safety,
fire prevention, and health matters." The provision neither
required the Agency to appoint particular individuals to the
committee nor prescribed the official duties to be performed. We
found the committee in Sawyer Air Force Base to be purely
advisory, and that consequently it did not constitute a forum
whereby the Union could interject itself into the decision-making
process by which management exercises its rights.

     VIII. Proposals 8 and 9

     Proposal 8

     Article XXXIV - Promotion and Placement

     Section 2. A panel considering candidates for a position
encumbered by more than one individual  will include one
member who currently holds the position.

     Proposal 9

     Article XXXIV - Promotion and Placement

     Section 3. The union-appointed observer on the Rating and
Ranking Panel shall be released to participate on the Panel for
which selected unless excusal is approved by the Personnel
Officer and a bonafide emergency exists.

     A. Positions of the Parties

     The Agency argues that Proposal 8 violates management's
right to assign work pursuant to section 7106(a)(2)(B) of the
Statute. The Agency notes that rating and ranking panels are an
integral part of management's decision-making process because
they compare the qualifications of applicants for a promotion and
determine which employees are to be selected. Also, the Agency
contends that Proposal 8 is inconsistent with management's right
under section 7106(a) (2)(B) to determine the personnel by which
Agency operations shall be conducted.

     The Agency argues that by requiring participation of a Union
representative on a promotion rating and ranking panel Proposal 9
interferes with management's right to select under section
7106(a)(2)(C) of the Statute. In addition, the Agency argues that
Proposal 9 also violates section 7106(a)(2)(B) because it assigns
duties to a particular individual, the Personnel Officer.

     The Union contends that neither proposal prevents management
from exercising its rights.

     B. Analysis and Conclusion

     In American Federation of Government Employees, AFL - CIO,
Mint Council 157 and Department of the Treasury, Bureau of the
Mint, 19 FLRA  640 (1985) (Provision 3), the Authority determined
that promotion and rating panels are permanent or ad hoc
committees established to evaluate, compare and rank employees
and, as such, constitute a part of the deliberative process by
which management determines which employees will be selected for
promotion under section 7106(a)(2)(C) of the statute. 

     Thus, it follows that the designation of particular
employees to serve on a rating and ranking panel, either
temporarily or permanently, constitutes the assignment of duties
associated with rating and ranking candidates for promotion. That
is, employees serving on promotion and ranking panels will
perform the duties associated with such membership either as
their total work assignment or in addition to the regularly
assigned duties of their appointed positions. Consequently, a
requirement that management assign rating and ranking panel
duties to particular employees interferes with management's right
under section 7106(a)(2)(B) of the Statute to assign work. See
also Association of Civilian Technicians, Inc., Pennsylvania
State Council and the Adjutant General, Department of Military
Affairs, Commonwealth of Pennsylvania, 7 FLRA  346 (1981)
(Provision 4).

     In addition, the designation of particular employees who
will serve on rating and ranking panels interferes with the
Agency's right under section 7106(a)(2)(B) to determine the
personnel by which agency operations are conducted. See National
Federation of Federal Employees, Locals 1707, 1737 and 1708 and
Headquarters, Louisiana Air and Army National Guard, New Orleans,
Louisiana, 9 FLRA  148 (1982). Thus, we find Proposal 8
nonnegotiable.

     Proposal 9 provides for a Union observer on rating and
ranking panels. However, as previously stated, rating and ranking
panels constitute a part of the deliberative process by which
management determines which employees will be selected for
promotion under section 7106(a)(2)(C) of the Statute. Bureau of
the Mint. In this respect, the Authority has consistently held
that proposals seeking union participation, even as an observer,
in the deliberative process leading to the exercise of
management's right to select under section 7106(a)(2)(C) are
nonnegotiable. See, for example, American Federation of
Government Employees AFL - CIO, Local 2298 and Department of the
Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA  385
(1986) and cases cited therein, petition for review filed sub
nom. American Federation of Government Employees, AFL - CIO,
Local 2298 v. FLRA,  No. 86-1497 (D.C. Cir. Sept. 4, 1986). Thus,
Proposal 9 is also nonnegotiable. In view of this determination
it is unnecessary to address the Agency's additional argument
concerning this proposal. 

     IX. Proposal 10

     Article - Hours of Work

     Section 3. - Individual, temporary changes to existing hours
of duty or hours of work will be made only after formal
negotiation and agreement with the union or an emergency. All
changes will be posted two (2) weeks prior to the administrative
workweek affected and will continue for a period of at least one
pay period or in the case of emergency until the emergency
conditions cease to exist, whichever is less. The posting of the
change will contain the following:

     a. New days and hours of the tour.

     b. Duration of the change.

     C. Signature of the "Authorizing Official."

     An emergency under this section shall be a sudden urgent
unforeseen and uncontrolled occurrence requiring immediate
action. Assignments to temporary changes to tours of duty on a
voluntary basis will be made without regard to this section.

     A. Positions of the Parties

     The Agency argues that this section is inconsistent with 5
C.F.R. 610.121(b)(2) because it would require that any changes to
existing tours of duty be made only after formal negotiations and
posted 2 weeks in advance.

     The Union claims that this proposal does not violate 5
C.F.R. 610.121 and that it is in accordance with section
7106(b)(1) of the Statute.

     B. Analysis and Conclusion

     Proposal 10 requires that the Agency provide Union officials
and stewards 2 weeks' notice before changing their tours of duty,
except in emergency situations or when the change is voluntary.
As such, Proposal 10 is to the same affect as Proposal I found
nonnegotiable in National Association of Government Employees,
Local R7-23 and Department of the Air Force, Scott Air Force
Base, Illinois, 23 FLRA  753 (1986) . Proposal 1 in that case
required the agency to give 14 days' notice before changing work
schedules except in emergencies. We found that
applicable law, 5 U.S.C. 6101(a) (3)(A) and 5 C.F.R. 610.121(a),
provides a minimum 7-day notice period, except where: (1) the
agency would be seriously handicapped in carrying out its
functions, or (2) costs would be substantially increased. We
determined in Scott Air Force Base that because the proposal
restricted the Agency's ability to revise work schedules within
the 7-day notice period to emergencies, it was narrower than the
exceptions permitted under the statutory framework and,
therefore, was inconsistent with law and regulation.

     Since Proposal 10 does not incorporate the statutory and
regulatory exceptions to the notice period stated above, it is,
for the reasons expressed in Scott Air Force Base, inconsistent
with applicable law and regulation, and therefore, outside the
duty to bargain.

     In addition, we find that this proposal, by defining what
constitutes an emergency situation, limits management's right
under section 7106(a)(2)(D) by precluding the Agency from
independently assessing when an emergency situation exists.
Consequently, this definition is also nonnegotiable. American
Federation of Government Employees, Locals 696 and 2010 and Naval
Supply Center, Jacksonville, Florida, 29 FLRA  No. 86 (1987)
(Proposal 1).

     X. Proposal 11

     Article - Hours of Work

     Section 8. Tours of duty shall not be changed solely for the
purpose of avoiding overtime pay.

     A. Positions of the Parties

     The Agency argues that this section is inconsistent with 5
C.F.R. 610.121(a) because it precludes management from
considering costs when changing a tour of duty.

     The Union claims that the purpose of this section is to
prevent abuse of management authority, and that it is not in
violation of law.

     B. Analysis and Conclusion

     This proposal is to the same effect as Proposal 1 found
nonnegotiable in Tidewater Virginia Federal Employees Metal
Trades Council and Department of the Navy, Navy Public Works
Center, Norfolk, Virginia, 25 FLRA  3 (1987) (Proposal 1). 

     Among other things Proposal 1 in that case would have
prevented the agency from changing work shifts to avoid the
payment of overtime. In that case we held, based on Scott Air
Force Base, that the proposal was outside the duty to bargain
because it prevented the Agency from changing work schedules to
avoid the payment of overtime even in circumstances when the
Agency determines that the requirements of 5 U. S. C.
6101(a)(3)(A) and 5 C. F. R. 610.121(a) are met. That is, we
found that even if the Agency determined that it would be
seriously handicapped in carrying out its functions or that costs
would be substantially increased if it did not change work
schedules to avoid overtime, the proposal precluded such
changes.

     Thus, for the reasons stated in Department of the Navy, Navy
Public Works Center, Norfolk, Virginia and cases cited therein,
we find Proposal 11 outside the duty to bargain. See also
American Federation of Government Employees, AFL - CIO, Local
2484 and U.S. Army Gar