39:1155(99)NG - - AFGE Local 2031 and VA Medical Center, Cincinnati, OH - - 1991 FLRAdec NG - - v39 p1155
[ v39 p1155 ]
The decision of the Authority follows:
39 FLRA No. 99
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves two proposals. The Union did not file a reply brief.
For the following reasons, we conclude that Proposal 1, which would require the Agency to limit a 5-consecutive-day on-the-job training assignment of Medical Supply Technicians (MSTs) to 1 day per week, is nonnegotiable. We will dismiss Proposal 2, which would require the Agency to provide transportation between its two divisions for all MSTs, because the parties failed to create a sufficient record upon which to make a negotiability determination.
The Union offered no argument in support of, or explanation concerning, its proposals in its petition for review and, as noted previously, did not file a reply brief. Accordingly, the background of this dispute, necessary to interpret and analyze the proposals, is taken primarily from the Agency's statement of position.
According to the Agency, it employs six MSTs, whose jobs involve delivering and ordering supplies for its facilities. Five of the MSTs are assigned to the Agency's medical facility. One MST is assigned to the Agency's Fort Thomas division, which is located approximately 7 miles from the medical facility. The disputed proposals were made during bargaining over the Agency's decision to, in certain circumstances, assign MSTs from the medical facility to Fort Thomas.(*)
III. Proposal 1
Union's Proposal (b). That each Medical Supply Technician be rotated one (1) day per week.
A. Positions of the Parties
The Agency argues that Proposal 1 directly interferes with its right to assign work. The Agency states that it contacted the Union to determine whether Proposal 1 was intended to apply to situations where MSTs from the medical facility were assigned to Fort Thomas because of the absence of the Fort Thomas MST, or whether the proposal was intended to apply during the period when MSTs were assigned to Fort Thomas for training. According to the Agency, the "Union President told management . . . that the proposal is intended to apply only to the training period." Statement of position at 3. The Agency maintains that in order for MSTs from the medical facility to fulfill the duties of the Fort Thomas MST, they must spend 5 consecutive days of "on-the-job training" at Fort Thomas "to become sufficiently familiar with the facility[.]" Id. at 2. The Agency claims that because Proposal 1 limits the number of consecutive days that an MST will spend on training at Fort Thomas, it "relieves [the Agency] of its discretion to determine the times and duration of training that employees are to receive." Id. at 5.
As noted previously, the Union offered no argument in its petition for review and did not file a reply brief.
B. Analysis and Conclusions
Consistent with the Agency's statement, which is consistent with the wording of Proposal 1 and is not controverted by the Union, we interpret the proposal as precluding the Agency from assigning MSTs from the medical facility to more than 1 day per week of on-the-job training at Fort Thomas. As interpreted, we agree with the Agency that the proposal directly interferes with the Agency's right to assign work under section 7106 of the Statute.
We note, at the outset, the Agency's statement that the "training" affected by Proposal 1 "is not for the purpose of teaching actual skills." Statement of Position at 2. That is, according to the Agency, the purpose of the "training" is "to acquaint the MSTs in minute detail with all elements of the Fort Thomas assignment . . . and to prepare them for any contingency that may present itself over the normal course of a day." Id. The Agency's statements are consistent with its notice to the Union and the record as a whole. As such, it is clear that the assignments encompassed by Proposal 1 are, in fact, assignments of MSTs from the medical facility to work at Fort Thomas in order to receive on-the-job training.
In American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA No. 45, slip op. at 4-7 (1991) (DMA), the Authority addressed, as relevant here, previous decisions holding that an agency's right to assign work encompassed the right to train, or not train, employees. We noted that the Authority had "not defined 'training.'" Id. at 4. We also noted, however, that most of the Authority decisions addressing this point concerned proposals which would have required an agency to provide, or precluded an agency from providing, employees with "instruction on how to perform various duties and responsibilities." Id. See also id. at n.2. We held that as the disputed proposal in DMA did not encompass "instruction of employees in any facet of their duties and responsibilities[,]" the proposal did not require the agency to "train employees . . . ." Id. at 7, 10. As the proposal did not otherwise directly interfere with the agency's right to assign work, the Authority held it to be negotiable.
In DMA, we did not address the extent to which all proposals relating to training would be held to directly interfere with an agency's right to assign work. Id. at 10. Similarly, we need not reach that issue here.
Like the disputed proposal in DMA, Proposal 1 does not encompass instruction of employees in facets of their duties and responsibilities. Instead, it is clear from the record that the "training" involved in Proposal 1 results from the performance of work. That is, the Agency has determined that in order to facilitate the ability of MSTs from the medical facility to perform the work of the MST at Fort Thomas, each medical center MST should work at Fort Thomas for 5 consecutive days. As such, unlike the proposal in DMA, the connection between the assignment of MSTs to Fort Thomas and the Agency's right to assign work is direct and immediate. Indeed, any "training" or experience received by the MSTs at Fort Thomas results from the performance of work at Fort Thomas.
The Agency states, and the Union does not dispute, "that five consecutive days are necessary for the MSTs to familiarize themselves with the Fort Thomas area." Statement of Position at 2. Proposal 1 would preclude the Agency from assigning MSTs at the medical facility to work for 5 consecutive days at Fort Thomas. As the decision to assign the work at Fort Thomas constitutes the exercise of the Agency's right to assign work, the proposal directly interferes with that right. See International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 837-38 (1990); International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 439 (1980).
Proposal 1 directly interferes with the Agency's right to assign work. Accordingly, in the absence of an argument by the Union, or other basis on which to conclude, that Proposal 1 is intended to constitute an appropriate arrangement under section 7106(b)(3) of the Statute, Proposal 1 is nonnegotiable.
IV. Proposal 2
Union's Proposal (c). That all Medical Supply Technicians be provided with shuttle service (Government Vehicle) to and from Fort Thomas Nursing Home to the Cincinnati VA Medical Center.
A. Positions of the Parties
The Agency claims that the proposal is inconsistent with Federal law because "[t]he Union is asking the Government to use its passenger motor vehicles to provide transportation between employees' home and place of employment for the purposes of facilitating their commute to work." Statement of position at 6. The Agency states that the shuttle service for MSTs would "presumably [be] at the beginning and end of their tours." Id.
The Agency asserts that MSTs are "expected to report directly to Fort Thomas at the start of their tour of duty" and "have no official purpose for reporting to the main medical center . . . ." Id. (emphasis in original). Similarly, the Agency claims that "once the day is complete, [the MSTs] are free to go wherever they please and are not required to return to the main medical center building for duty purposes." Id. (emphasis in original).
The Agency asserts that "[t]he Comptroller General of the United States has ruled [in 62 Comp. Gen. 438 (1983)] that 31 U.S.C º 1344(b) prohibits agencies from providing transportation to Federal employees for the purpose of commuting to or from their residences unless there is specific statutory authority to do so, or where such transportation is incident to otherwise authorized use of vehicles involved." Id. at 7. The Agency states that the Union has not presented "any official purpose" for the Agency to provide a shuttle bus. Id. at 8. The Agency argues that because the proposal would require the Agency "to get employees to points between their homes and place of employment and back home[,]" it "conflicts with law . . . ." Id. at 9.
The Union's position is taken from its Request to Negotiate submitted to the Agency, where it asserted that the "impact" on its employees would be "added expense . . . (gas, oil, wear and tear on private vehicle)." Attachment to Petition for Review (Memorandum dated July 5, 1990). The Union also asserted that "one employee does not drive [and] [w]ould have to catch 2 or 3 buses to get to Fort Thomas." Id.
B. Analysis and Conclusions
Proposal 2 requires the Agency to provide a shuttle service from the main Cincinnati facility to Fort Thomas for the purpose of transporting the MST to and from Fort Thomas on days when Fort Thomas is the MST's regular duty station. Consistent with the Agency's uncontroverted statement, and absent any other indication in the record, we will assume, for purposes of this determination, that the shuttle service would be provided before and after an MST's regular tour of duty and not during their paid duty time. Compare National Association of Government Employees and Veterans Administration, Veterans Administration Medical Center, Brockton/West Roxbury, Massachusetts, 37 FLRA 263, 269 (1990) (proposal allowing employees to travel by agency shuttle bus between posts of duty during regular work time held nonnegotiable as excessively interfering with the agency's right to assign work; portion of proposal requiring payment of overtime if employees were delayed on the shuttle bus past their regular tour of duty held nonnegotiable as inconsistent with Federal law).
31 U.S.C. º 1344 governs the use of Government-owned passenger carriers and provides that funds may be expended "for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes." 31 U.S.C. º 1344(a)(1). The section further states, with exceptions not relevant here, that "transporting any individual . . . between such individual's residence and such individual's place of employment is not transportation for an official purpose." In interpreting 31 U.S.C. º 1344, the Comptroller General has determined that, in the absence of other specific authorization, one narrow exception to the general prohibition on use of Government vehicles for commuting is authorized. This exception applies "when provision of home-to-work transportation to Government employees has been incident to otherwise authorized use of the vehicles involved, i.e. was provided on a 'space available' basis, and did not result in additional expense to the Government[.]" 62 Comp. Gen. 438, 447 (1983).
Applying 31 U.S.C. º 1344, the Authority has held nonnegotiable proposals which required the use of Government vehicles to assist employees in their commutes to and from work, unless such transportation was incident to the authorized use of Government vehicles for other official business. See, for example, American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 716-18 (1986) aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (1987) (proposal requiring the agency to provide transportation to and from the subway in non-daylight hours held inconsistent with Federal law). Compare American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 62-65 (1982) (proposal requiring the agency to provide shuttle service between various work sites for official purposes and permitting employees to ride the buses as part of their travel to and from work held negotiable).
To determine whether Proposal 2 is consistent with 31 U.S.C. º 1344, we need to ascertain whether the Agency already has authorized Government vehicles to make the trip between the medical facility and Fort Thomas for other official purposes at the times in question or whether the Agency would be required under Proposal 2 to establish a shuttle service solely for the purpose of transporting MSTs between the medical facility and Fort Thomas. The record in this case does not contain this information. Although it appears, from the Agency's statement, that the Agency has "passenger motor vehicles" available, there is nothing in the record as to the use of these vehicles.
The parties bear the burden of creating a record on which we can base a negotiability determination. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 518 (1990) (Proposal 1). See also National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Because the record here does not contain information sufficient for us to determine whether Proposal 2 is consistent with law, we are unable to make a negotiability determination. Consequently, we will dismiss the peti