53:0526(58)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1997 FLRAdec NG - - v53 p526



[ v53 p526 ]
53:0526(58)NG
The decision of the Authority follows:


53 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NEWINGTON, CONNECTICUT

(Agency)

0-NG-2264

0-NG-2265

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

These cases are 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). The appeals concern the negotiability of five proposals submitted following the Agency's notification of changes in certain practices resulting from the Veterans Affairs Medical Center's (VAMC's) reorganization of its Newington and West Haven medical facilities.

The Agency filed a consolidated statement of position. The Union filed a consolidated response to the Agency's consolidated statement of position.(1)

For the reasons that follow, we dismiss, without prejudice, the petition for review as to Proposals 2 and 3 because the Agency has not alleged that the proposals are inconsistent with law, rule, or regulation. We conclude that Proposal 1 is outside the duty to bargain because it affects management's right to determine its organization under section 7106(a)(1) of the Statute. We conclude that Proposal 4 is within the duty to bargain. We conclude that Proposal 5 is outside the duty to bargain because it is contrary to section 7114(a)(2)(A) of the Statute.

II. Preliminary Issues

A. Consolidation of Cases

The Authority has consolidated cases that involve the same parties, arise out of the same negotiations, and present similar negotiability issues. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 831 (1996) (IFPTE). The proposals in Case Nos. 0-NG-2264 and 0-NG-2265 involve the same parties, present similar negotiability issues, arise from matters resulting from the same reorganization, and were consolidated for briefing by the parties. Consistent with IFPTE, we have consolidated the cases for consideration.(2)

B. Request to File Supplement Submission

The Agency requests permission to file a supplemental submission in response to the Union's assertion in the Union's Response that the Agency has elected to bargain over the proposals in these cases pursuant to section 7106(b)(1) of the Statute. Where the Authority finds that a proposal is negotiable at the election of an agency under section 7106(b)(1), the Authority dismisses the petition for review and does not address claims that there has been an election to bargain. American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1495 (1997) (Bureau of Prisons). Pursuant to section 2424.8 of the Authority's Regulations, we have considered the Agency's request and find, in light of our holding in Bureau of Prisons, that it provides no basis on which to allow the supplemental submission. Accordingly, the Agency's request is denied.

C. The Agency Has Not Alleged that Proposals 2 and 3 Are Contrary to Law, Rule, or Regulation

Before filing its petition for review in Case No. 0-NG-2264, the Union requested that the Agency provide written allegations of nonnegotiability concerning the proposals it believed to be outside the duty to bargain. The Agency did not respond to the Union's request, and the Union filed its petition with the Authority.

The Agency acknowledges that it never provided the Union with the requested written allegation of nonnegotiability and asserts that it "would have continued to negotiate [over the proposals] had the [U]nion not peremptorily ceased negotiations and requested an allegation of non-negotiability." Statement at 4 n.2. As relevant here, in its consolidated statement of position, the Agency does not assert that Proposal 2 or Proposal 3 is inconsistent with law, rule, or regulation.

Under section 2424.1 of the Authority's Regulations, the Authority will 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. See 5 U.S.C. § 7117(c). As there is no basis on which to conclude that the Agency has alleged that its duty to bargain does not extend to Proposals 2 and 3, the petition for review as to these proposals is not properly before us. See, e.g., American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 372 (1990). Accordingly, we dismiss the petition as to these proposals without prejudice to the Union's right to file an appeal if the Agency alleges that the proposals are outside the duty to bargain because they are inconsistent with law, rule, or regulation and other conditions governing review are met. See, e.g., American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Headquarters, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 53 FLRA 131, 132 (1997).

III. Background

The proposals relate to VAMC's consolidation of its Newington and West Haven medical facilities. The Newington employees are represented by the Union. The West Haven employees are represented by the American Federation of Government Employees (AFGE).

Proposal 1 was submitted in response to VAMC's decision to relocate Newington employees' Official Personnel Folders (OPF's) to its West Haven site in conjunction with VAMC's decision to consolidate certain work functions of the Office of Human Resources Management (HRM), including consolidating HRM's responsibility of maintaining employees' OPF's, and assigning the responsibilities to employees at the West Haven site.(3) Proposals 4 and 5 were submitted in response to VAMC's decision to conduct joint Fiscal Service Staff meetings of Newington and West Haven employees at a neutral site.

IV. Proposal 1

All bargaining unit employee Official Personnel Folders (OPF's) will be maintained at the Newington[,] Connecticut facility.

A. Positions of the Parties

1. Union

The Union asserts that the proposal concerns matters relating to section 7106(b)(1) of the Statute, and is a procedure under section 7106(b)(2) and an appropriate arrangement under section 7106(b)(3) of the Statute.(4)

2. Agency

a. Right to Determine Its Organization

The Agency states, without contradiction, that Proposal 1 was submitted in response to a decision, resulting from the reorganization of VAMC's two Connecticut medical facilities, to consolidate HRM's responsibility for maintaining employees' OPF's and assign it to the West Haven Human Resources Management Service (HRMS). The Agency contends that any proposal seeking to continue the HRM OPF maintenance function at the Newington facility, instead of transferring the function to the West Haven facility, violates the Agency's right to determine its organization under section 7106(a)(1) of the Statute. In this regard, the Agency states that the VAMC reorganization "necessitate[d] the consolidation of certain work functions common to both [medical facilities], including the maintenance and custody of the OPF's." Id. at 5. The Agency argues that the "clear purpose and effect" of Proposal 1 "is to interfere with and reverse [VAMC's] reorganization [of the two facilities] by consolidating them under a single management, administrative and support structure." Id. at 4-5. The Agency asserts that "the [U]nion's proposal impermissibly interferes with management's right to determine its organization by interfering with, and attempting to reverse, [VAMC's] consolidation of certain functions at Newington and West Haven." Id. at 5.

b. Claims Regarding Section 7106(b)(2) and Section 7106(b)(3) (5)

The Agency contends that the Union's "OPF and staff meeting proposals" do not constitute negotiable procedures under section 7106(b)(2) of the Statute. Id. at 7. The Agency asserts that the proposals directly interfere with management's reserved rights by placing substantive restrictions on those rights.

The Agency also contends that the proposals do not constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. In this regard, the Agency claims that the Union has the burden of establishing the adverse effect flowing from the exercise of a management right and explaining how the proposed arrangement addresses the adverse effect. The Agency argues that the Union has not satisfied this burden because "[t]he Union alleges no adverse effects that either [the OPF or the staff meeting] proposal addresses." Id. at 8.

B. Analysis and Conclusions

1. Meaning of the Proposal

By its plain wording, Proposal 1 requires the Agency to maintain Newington employees' OPF's at the Newington site. The Union does not elaborate on the proposal's meaning or the context in which it is intended to apply.

2. The Union's Bare Assertion that the Agency May Elect to Bargain Over Proposal 1 Under Section 7106(b)(1) Is Rejected

In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 393 (1995) (VAMC, Lexington), the Authority set forth the approach that it applies in negotiability disputes where parties disagree whether a proposal comes within the terms of section 7106(a) or section 7106(b)(1) of the Statute. Under this approach, the Authority first examines the contention that a proposal is electively bargainable under section 7106(b)(1). If the proposal concerns a subject set forth in section 7106(b)(1), the Authority does not address contentions that the proposal also affects the exercise of management's authorities under section 7106(a). If, however, the proposal is not encompassed by section 7106(b)(1), the Authority proceeds to analyze it under the appropriate subsection of section 7106(a). In this regard, where a party asserts that a proposal concerns a matter within the subjects set forth in section 7106(b)(1), but offers no argument or authority to support its bare assertion to that effect, and it is not otherwise apparent that the proposal concerns a section 7106(b)(1) matter, the Authority will reject the assertion. National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA No. 47, slip op. at 6 (1997) (NAGE, Local R1-109).

The parties disagree whether Proposal 1 comes within the terms of section 7106(a) or section 7106(b)(1). Other than its bare assertion, the Union offers no basis for finding that the proposal concerns a matter within the subjects set forth in section 7106(b)(1). Further, it is not otherwise apparent that the Union's proposal concerns matters governed by section 7106(b)(1). Consequently, we reject the Union's claim that the proposal concerns matters within the meaning of section 7106(b)(1).

3. Proposal 1 Affects Management's Section 7106(a) Right to Determine Its Organization

Management's right to determine its organization under section 7106(a)(1) encompasses an agency's authority to determine its administrative and functional structure, including the relationship of personnel through lines of control and the distribution of responsibilities for delegated and assigned duties. International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 819 (1996) (citing, e.g., American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1604-05 (1993) (DHHS, SSA)). That is, the right includes the authority to determine how the agency will structure itself to accomplish its mission and functions. Id. This determination includes such matters as where organizationally certain functions shall be established and where the duty stations of the positions providing those functions shall be maintained. See National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville District, 32 FLRA 886, 889-90 (1988) (a proposal that would preclude management from moving the work of employees' positions from one location to another found to violate management's right to determine its organization, including the right to determine where--organizationally--certain functions shall be established and where the duty stations of the positions in those units shall be maintained)).

It is undisputed that Proposal 1 was made in response to the Agency's notification that it was transferring the HRM function of maintaining Newington employees' OPF's to VAMC West Haven's HRMS. That decision was made in conjunction with VAMC's reorganization of its Connecticut medical facilities that resulted, as relevant here, in the consolidation of VAMC's HRM administrative structure. Included in this consolidation was the transfer of HRM's OPF responsibility to West Haven's HRMS. Therefore, the determination to consolidate the HRM responsibility of maintaining employees' OPF's by transferring the function to West Haven's HRMS constitutes a decision as to where organizationally the HRM function shall be established and where the duty stations of the positions providing the function shall be maintained.

Proposal 1 is directed at continuing the custody and maintenance functions for Newington employees' OPF's at the Newington site. As such, Proposal 1 would preclude the Agency from consolidating the HRM responsibility of maintaining employees' OPF's under West Haven's HRMS. Therefore, we find that the proposal affects the Agency's right to determine its organization under section 7106(a)(1) and is outside the duty to bargain unless, as asserted by the Union, it constitutes either a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). See, e.g., NAGE, Local R1-109, slip op. at 9.

4. Proposal 1 Is Not a Procedure or an Appropriate Arrangement Under Section 7106(b)(2) or (3) and Is Not Within the Duty to Bargain

The Union provides no argument or authority to support its bare assertion that Proposal 1 constitutes a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. When a union fails to support such an assertion, the Authority declines to address it. Id. and cases cited therein. The Union's unsupported assertions provide no basis for concluding that Proposal 1 is within the duty to bargain under section 7106(b)(2) or (3). Therefore, inasmuch as the proposal affects management's right under section 7106(a)(1) to determine its organization, we conclude that the proposal is not within the duty to bargain.

V. Proposal 4

All staff meetings involving bargaining unit employees will be conducted at the Newington Facility.

A. Agency's Position

The Agency contends that Proposal 4 interferes with its right under section 7106(a)(1) to determine its organization. In this regard, the Agency states that the VAMC reorganization "necessitate[d] the consolidation of certain work functions common to both [medical facilities]," including the determination of where it will hold its Fiscal Service staff meetings. Statement at 5. The Agency argues that the "clear purpose and effect" of the Union's proposal to conduct all staff meetings at the Newington site "is to interfere with and reverse [VAMC's] reorganization [of the two facilities] by consolidating them under a single management, administrative and support structure." Id. at 4-5. The Agency asserts that management's right to determine its organization includes the right to determine how it will structure itself and the geographic locations where it will conduct its operations.

The Agency also contends that Proposal 4 interferes with its right under section 7106(a)(2)(A) of the Statute to direct employees and its right under section 7106(a)(2)(B) of the Statute to assign work.

B. Analysis and Conclusions

1. Meaning of the Proposal

As worded, Proposal 4 requires "all staff meetings" involving Newington unit employees to be held at the Newington medical facility. There is nothing in the record to suggest that the term "staff meetings" as used in the proposal does not include the joint Fiscal Service staff meetings of Newington and West Haven employees. Therefore, based on the proposal's plain wording and the record as a whole, we find that the term "staff meetings" as used in the proposal includes the joint Fiscal Service staff meetings.

2. The Union's Bare Assertion that the Agency May Elect to Bargain Over Proposal 4 Under Section 7106(b)(1) Is Rejected

The parties disagree about whether Proposal 4 is governed by section 7106(a) or section 7106(b)(1). However, the Union offers no argument or authority to support its bare assertion that the proposal concerns a section 7106(b)(1) matter, and none is a apparent to us. Accordingly, for the reasons set forth above in section IV.B.2., we reject the Union's claim.

3. Proposal 4 Does Not Affect Management's Section 7106(a) Rights and Is Within the Duty to Bargain

a. Right to Determine Its Organization

An agency's right to determine its organization "encompasses the determination of how an agency will structure itself to accomplish its mission and functions." American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 802 (1996) (citing DHHS, SSA, 46 FLRA at 1605)). The determination of how an agency will structure itself to accomplish its missions and functions "includes such matters as the geographical locations in which an agency will provide services or otherwise conduct its operations[.]" Id.

Proposal 4 specifies where the Agency will hold meetings, including its joint Fiscal Service staff meetings. However, where an agency holds its staff meetings does not constitute a decision relating to the administrative and functional structure used by the agency to accomplish its missions and functions. In other words, the proposal does not affect the organizational structure or the geographical locations that the Agency has deemed necessary to accomplish its mission and functions. Accordingly, we find that the proposal does not affect management's section 7106(a) right to determine its organization.

b. Right to Direct Employees

"[T]he right to direct employees [within the meaning of section 7106(a)(2)(A) of the Statute] means to 'supervise and guide [employees] in the performance of their duties on the job.'" Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 834 (1991) (POPA) (quoting National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd, 691 F.2d 553 (D.C. Cir. 1982); see American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 142 n.2 (1996) and case cited therein. The right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment. See POPA, 41 FLRA at 834-35 (citing National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40, 43 (1987)).

Proposal 4 does not prevent the Agency from supervising employees, determining the quantity, quality and timeliness of work production, or establishing priorities for the accomplishment of work. As such, we find that the proposal does not affect the direction of employees within the meaning of section 7106(a)(2)(A) of the Statute.

c. Right to Assign Work

With one exception, the Authority has held that the geographical location where the given work of a position will be performed does not involve an assignment of work within the meaning of section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, Local 898 and U.S. Department of Labor, Occupational Safety and Health Administration, Denver, Colorado, 39 FLRA 1441, 1443 (1991) and cases cited therein. With respect to the exception, the Authority has stated that, if management establishes that a relationship exists between the job location and the job duties, then a proposal governing the job location would be found to violate management's right to assign work. See American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Cypress Hills District Office, 31 FLRA 1110, 1111-12 (1988).

The Agency has not established that a relationship exists between where it will hold its staff meetings and the job duties performed by Fiscal Service staff. The Agency argues only that the proposal deprives it of the flexibility to hold the staff meetings at other sites, not that a relationship exists between where it will hold its staff meetings and the job duties performed by Fiscal Service staff. Accordingly, we find that the proposal does not affect management's right to assign work under section 7106(a)(2)(B) of the Statute. Cf. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83, 85-86 (1981) (a proposal that was limited to determining which employees would perform their regular duties in a different location did not interfere with management's right to assign work under the Statute).

In sum, Proposal 4 does not affect the Agency's rights under section 7106(a) to determine its organization, direct employees, and assign work. The Agency has made no other assertions with respect to the proposal. Therefore, the proposal is within the duty to bargain. In light of this finding, we do not address the Union's claims that the proposal constitutes a negotiable procedure or an appropriate arrangement under section 7106(b)(2) and (3), respectively.

VI. Proposal 5

No other bargaining representative will be allowed to attend the staff meetings.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 5 is contrary to section 7114(a)(2)(A) of the Statute because it precludes AFGE union representatives from lawfully attending formal discussions. In this regard, the Agency asserts that inasmuch as the staff meetings encompass formal discussions involving employees in the bargaining unit exclusively represented by AFGE, AFGE representatives have a statutory right to be present at the staff meetings.

2. Union

The Union claims that "[t]he [Agency's] position of allowing other labor organizations to attend staff meetings would have the same effect as forcing multi unit bargaining, and multi unit attendance at formal discussions." Union's Response at 4. The Union claims that such an arrangement "would violate the Union's exclusive recognition status." Id. at 5.

B. Analysis and Conclusions

1. Meaning of the Proposal

As worded, Proposal 5 precludes the Agency from allowing other unions' bargaining unit representatives to attend "the staff meetings." The Union does not explain the proposal's meaning or the context in which it is supposed to apply.

As found above in section V.B.1., the term "staff meetings" as used in the proposal includes joint Fiscal Service staff meetings of Newington and West Haven employees. As such, Proposal 5 is construed as precluding the Agency from allowing AFGE, the exclusive representative of West Haven employees, from attending staff meetings, including the joint Fiscal Service staff meetings.

2. Proposal 5 Is Contrary to Section 7114(a)(2)(A) of the Statute

Under section 7114(a)(2)(A) of the Statute, an exclusive representative must be given an opportunity to be present at a discussion which is formal between one or more representatives of the agency and one or more unit employees or their representatives concerning any grievance or any personnel policy or practice or other general condition of employment. Section 7114(a)(2)(A) requires management to give the employees' exclusive representative adequate prior notice of, and an opportunity to be present at, the meeting even if the meeting was called for the purpose of making a statement or announcement rather than to engender dialogue. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 598 (1987) (citing Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA 529, 532 (1984)).

There is no dispute that the joint Fiscal Services staff meetings involve agency management officials and unit employees. In addition, the Agency asserts without contradiction that at the joint Fiscal Service staff meetings working conditions are sometimes discussed, and, therefore, those meetings encompass "formal discussions" within the meaning of section 7114(a)(2)(A). Further, the Union's assertion that allowing AFGE's attendance at the staff meetings would have the same effect as "forcing multi unit bargaining, and multi unit attendance at formal discussions[,]" effectively acknowledges that the staff meetings encompass formal discussions under section 7114(a)(2)(A). See Union's Response at 4. Based on the foregoing, we find that the joint Fiscal Service staff meetings encompass formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.

Proposal 5 precludes management from allowing AFGE representatives to be present at the joint Fiscal Service staff meetings. As stated above, the joint Fiscal Service staff meetings are attended by employees of the West Haven facility who are represented by AFGE. Because the proposal prevents the Agency from permitting AFGE representatives to be present at formal discussions involving their unit employees, the proposal is contrary to section 7114(a)(2)(A) of the Statute. Consequently, we find that Proposal 5 is outside the duty to bargain.(6)

VII. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 4.(7) The petition for review is dismissed as to Proposals 1 and 5. The petition for review concerning Proposals 2 and 3 is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review are satisfied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union refers to its submission as its "Response to Authority Show Cause Orders." However, the Authority did not issue orders to show cause in the instant cases. Based on the submission, it is clear that the Union's reference is inadvertent and the reference should be to the Union's consolidated response to the Agency's consolidated statement of position (Union's Response).

2. The proposals in Case No. 0-NG-2265 have been numbered sequentially after the proposals in Case No. 0-NG-2264.

3. It is not clear from the record whether all or just some of HRM's work functions were consolidated at the West Haven site.

4. This position, which was asserted with regard to each of the proposals in this consolidated case, will not be repeated in conjunction with our discussion of Proposals 4 and 5.

5. The Agency's assertions in this section also apply to Proposal 4 and will not be repeated in conjunction with our discussion therein.

6. In light of our determination, we do not address the Union's claim