54:0521(55)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1998 FLRAdec NG - - v54 p521



[ v54 p521 ]
54:0521(55)NG
The decision of the Authority follows:


54 FLRA No. 55

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-2239

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns six proposals relating to the Agency's use of contract employees to perform some of the Agency's functions.(1)

For the reasons that follow, we dismiss the petition for review as to Proposals 5 and 6 because they are moot. We find that Proposals 1-4 are outside the duty to bargain, and therefore we dismiss the petition for review as to those proposals.

II. Background

Following a reduction in its Full Time Employee Equivalents (FTEEs) authority, the Agency notified the Union that it had decided, pursuant to 38 U.S.C. §§ 8151 et seq., to enter into a Sharing Agreement with the State of Connecticut, Rocky Hill Veterans Home (State Home).(2) Under the Sharing Agreement, the State Home would provide approximately 20 compensated work therapy (CWT) veterans to the Agency to perform some of the Agency's functions. After preliminary bargaining, the Union failed to respond to the Agency's request for proposals, and the Agency implemented the Sharing Agreement.

The Union subsequently submitted to the Agency the mid-term proposals that are the subject of the instant appeal. The Agency refused to bargain over the proposals, contending that it had "no duty to bargain on matters over which the [Agency] ha[d] already fulfilled its bargaining obligations." Statement of Position, Attachment 11. The Union then filed an unfair labor practice (ULP) charge (Case No. BN-CA-50433) as to the Agency's refusal to bargain over its proposals.(3)

The Union also filed the petition for review in this case. In its petition, the Union elected to proceed first with the instant negotiability appeal. Petition for Review at 1. The Agency filed a statement of position, but the Union did not file a response.(4)

The Authority issued an order requiring the Union to show cause why its petition for review should not be dismissed on the ground that, by failing to file a response to the Agency's statement of position, it did not provide a record in support of its petition. The Union responded to the Authority's Order to Show Cause, asserting "that there exists a complete enough record for the Authority to make a determination of the issues." Union Response to Authority Show Cause Order at 2.(5)

III. Preliminary Issue

A. Positions of the Parties

1. Agency

The Agency claims that the Union failed to select, under section 2424.5 of the Authority's Regulations, whether to proceed with the instant negotiability appeal or the unfair labor practice charge in BN-CA-50433. The Agency also contends that the Union's petition is deficient because the Union did not request a written allegation of nonnegotiability and the Agency, in its response to the Union's proposals, did not provide the Union with an allegation. Citing American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 36 FLRA 82 (1990) (Whidbey Island), the Agency asserts that such a written request by the union and an agency allegation of nonnegotiability are prerequisites to filing a negotiability appeal.

2. Union

Inasmuch as the Union did not file a response to the Agency's statement of position, it did not specifically address the Agency's claims.

B. Analysis and Conclusions

As noted above, the Union elected in its petition for review to proceed with the instant negotiability appeal instead of the unfair labor practice charge. Consequently, we reject the Agency's claim that the Union failed to make such an election.

The Authority will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See 5 U.S.C. § 7117(c)(1); 5 C.F.R. § 2424.1.(6) It is undisputed that the Union did not request an allegation of nonnegotiability as to its proposals and the Agency did not provide a written allegation of nonnegotiability to the Union. However, in its statement of position, the Agency took the position that the proposals are outside the duty to bargain because they are inconsistent with its management rights under section 7106(a) of the Statute.

The requirement of section 2424.3 of the Authority's Regulations that a union request a written allegation of nonnegotiability from an agency is a regulatory, not a statutory, requirement, and may be waived for good cause.(7) See American Federation of Government Employees and U.S. Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 37 FLRA 914, 918 (1990) (Fort Buchanan). Even in the absence of an allegation of nonnegotiability within the meaning of section 2424.3, the Authority has considered a petition for review where, in its response to that petition, an agency contends that the union's proposal is inconsistent with law, rule, or regulation. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 468 (1990) (SSA).

The Agency's reliance on Whidbey Island is misplaced. Unlike that case, where the union did not submit specific proposals to the agency prior to filing its petition with the Authority, the Union here did submit proposals to the Agency before it filed its petition for review. Moreover, in Whidbey Island, the agency indicated a willingness to consider specific proposals and alternatives. In the instant case, the Agency has not expressed a willingness to consider the Union's proposals, but rather contends that the proposals are outside the duty to bargain.

Consistent with Fort Buchanan and SSA, it is appropriate in these circumstances to waive the Authority's regulatory requirement that the Union request an Agency allegation of nonnegotiability and to conclude that the petition for review is properly before us.

IV. Proposals

A. Positions of the Parties

1. Agency

The Agency contends that it does not have a duty to bargain over any of the proposals because they do not concern employees' conditions of employment, but, rather, concern the Agency's statutory authority under 38 U.S.C. § 8153 to enter into Sharing Agreements with the State Home to carry out its patient care mission.(8) See Statement of Position at 9. The Agency argues that section 8153 is beyond the scope of collective bargaining because it has the purpose of affecting Agency clients, not Agency employees. The Agency also argues that it does not have a duty to bargain over work assignments and overtime for CWT personnel, because the CWT program has only an indirect effect on unit employees' conditions of employment.

The Agency asserts that the proposals are outside the duty to bargain because they affect management's right to contract out. Finally, the Agency claims that it has no duty to bargain on the proposals because they are covered by the parties' collective bargaining agreement and are improper union-initiated mid-term proposals.

The Agency contends that the dispute as to Proposal 5 is moot because the Agency provided the Union with the information requested under the proposal.

2. Union

The Union does not address the Agency's claim that the proposals are outside the duty to bargain because they do not concern unit employees' conditions of employment or because they affect management's right to contract out. The Union's argument, in its entirety, is that its "proposals address [section] 7106(b)(1), [n]umbers, [t]ypes, and [g]rades issues, as well as procedures and appropriate arrangements under [section] 7106(b)(2) and (3)." Petition for Review at 1.

B. Analysis and Conclusions

1. Meaning of the Proposals

By their plain terms, Proposals 1-3 impose conditions on the assignment of CWT personnel. Specifically, Proposal 1 conditions the assignment of work to CWT personnel on the provision of information about those personnel to the Union. Proposal 2 prohibits the assignment of CWT personnel so as to deny unit employees full-time employment. Proposal 3 conditions the assignment of CWT personnel on the announcement and filling of vacant unit positions. Proposal 3 also prohibits the Agency from assigning CWT personnel so as to fill any vacant unit positions. In the absence of any further explanation of Proposals 1-3 by the Union, we interpret the proposals consistent with their plain terms. See, e.g., National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 526, 530 (1997) (VAMC, Newington).

Proposal 4, read in isolation, would restrict actions by "CWT personnel" -- prohibiting these individuals from interfering with bargaining unit members' contractual rights -- rather than restrict actions by the Agency. It is not clear, however, how the Agency would have authority to agree to actions independently undertaken by third parties. Reading Proposal 4 in the context of companion Proposals 1-3 removes this uncertainty, however, and leads us to construe Proposal 4 to mean that the Agency would be prohibited from assigning CWT personnel so as to interfere with certain contractual rights of unit employees.

Proposal 5 requires the Agency to provide the Union with the statutory or regulatory authority on which the Agency relies to establish the CWT program. Proposal 6 permits the Union to submit proposals within 30 days after the information referenced in Proposal 5 is provided to the Union.

2. Proposals 5 and 6 Must Be Dismissed as Moot

Because the Union does not controvert the Agency's contention that the Agency provided the required information to the Union, we find that the dispute as to Proposal 5 is moot. Consequently, we dismiss the petition for review as to this proposal. See, e.g., International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 33 FLRA 512, 519 (1988).

Proposal 6 permits the Union to submit proposals 30 days from the date on which the Agency provides the Union with the information required by Proposal 5. Because the Agency provided that information to the Union prior to filing its Statement of Position, Statement of Position at 6 n.3, the 30 days specified in Proposal 6 has run. Proposal 6, therefore, is also moot. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1279 (1997). Accordingly, we dismiss the petition for review as to Proposal 6.

3. Proposals 1-4 Are Outside the Duty to Bargain and Are Not Electively Negotiable

The Agency argues, among other things, that Proposals 1-4 affect management's right to make determinations as to contracting out under section 7106(a)(2)(B) of the Statute.(9) The Union did not respond to the Agency's argument. However, in its Petition for Review, the Union claims that its proposals, including Proposals 1-4, address section 7106(b)(1) issues, as well as procedures and appropriate arrangements under section 7106(b)(2) and (3).

Section 7106(b) of the Statute constitutes an exception to section 7106(a). National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 392 (1995). In American Federation of Government Employees, HUD Council of Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998) (HUD), the Authority clarified the approach it will use in resolving negotiability disputes where parties disagree as to whether a proposal comes within the terms of section 7106(a) or 7106(b). In particular, where an agency claims that a proposal affects a management right or rights under section 7106(a), and a union claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. Id. at 178 and note 10.

Consistent with this approach, we first address the claims regarding sections 7106(a) and 7106(b)(2) and (3). Because the Union does not dispute the Agency's claim that the proposals in this case affect management's right to make determinations with respect to contracting out under section 7106(a)(2)(B), we find that Proposals 1-4 affect management's right to make determinations with respect to contracting out.

As to section 7106(b)(2) and (3), the Union makes only an unsupported claim that its proposals constitute procedures and appropriate arrangements. Where a union offers no arguments or authority to support its bare assertion that a particular proposal is within the duty to bargain on either or both of these grounds, we do not consider the assertion. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 542 (1997). Moreover, the Union has not provided any information about the operation and effect of these proposals. Consequently, because we find that Proposals 1-4 affect management's right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute, and there is no basis for concluding that they constitute procedures and appropriate arrangements, we conclude that the proposals are not within the duty to bargain. See, e.g., National Association of Government Employees, Local R1-109 and Department of Veterans Affairs, Medical Center, Newington, Connecticut, 53 FLRA 403, 411 (1997).

Having resolved the claims regarding sections 7106(a) and 7106(b)(2) and (3) and determined that Proposals 1-4 are not within the duty to bargain, we next address the Union's contention that the proposals are nonetheless electively negotiable under section 7106(b)(1). Other than its bare assertion, the Union offers no basis for finding that its proposals concern a matter within the subjects set forth in section 7106(b)(1), and it is not otherwise evident from the record that the proposals concern such a matter. Accordingly, we reject the Union's claim that the proposals concern matters within the meaning of section 7106(b)(1). See VAMC, Newington, 53 FLRA at 531.

V. Order

The petition for review is dismissed.(10)

APPENDIX

1. Proposals

[Proposal 1]

Prior to assigning any work through the CWT/VIP program the Employer will provide the Union with the names, location, tour of duty, and pay of any and all CWT/VIP personnel.

[Proposal 2]

No CWT/VIP personnel shall be assigned in such a fashion as to deny any bargaining unit employee full-time status.

[Proposal 3]

No CWT/VIP personnel shall be assigned in such a fashion as to fill any vacant bargaining unit position. All vacancies in the unit shall be announced and filled prior to the assignment of CWT/VIP personnel.

[Proposal 4]

No CWT/VIP personnel shall interfere with the exercise of seniority, overtime, vacation, shifting, or other contractual right of any bargaining unit employee.

[Proposal 5]

The Employer through [its] national office, and District and or General Counsel, shall provide the Union with a copy of the Statute, Rule and or Regulation, or policy which it is relying on in establishing [its] CWT/VIP program.

[Proposal 6]

Upon receipt of the above[,] the Union shall have an additional thirty (30) days to submit proposals regarding the CWT/VIP program.

2. Section 7117(c)(1) of the Statute provides as follows:

(c)(1) Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection.

3. 5 C.F.R. § 2424.1 provides, in relevant part, as follows:

The Authority will consider a negotiability issue under the conditions prescribed by . . . [section 7117(c)], namely: If an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter proposed to be bargained because, as proposed, the matter is inconsistent with law, rule, or regulation . . . .

4. 5 C.F.R. § 2424.3 provides as follows:

The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the exclusive representative: Provided, however, That review of a negotiability issue may be requested by an exclusive representative under this subpart without a prior written allegation by the agency if the agency has not served such allegation upon the exclusive representative within ten (10) days after the date of the receipt by any agency bargaining representative at the negotiations of a written request for such allegation.




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

1. The text of the proposals is set forth in the Appendix to this decision.

2. Under 38 U.S.C. § 8151, the Secretary of Veterans Affairs is authorized "to enter into agreements with . . . health-care providers . . . in order to share health-care resources with, and receive health-care resources from," those providers.

3. The ULP charge in Case No. BN-CA-50433 was subsequently withdrawn because it was settled based on an agreement by the parties.

4. At the request of the Authority, the Agency also filed a supplemental submission addressing the relevance of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), to this case. Although the Union was also requested to file such a submission, it did not do so.

5. In the supplemental submission, the Union requests that the Authority take official notice of the settlement agreement in Case No. BN-CA-50433 because that agreement demonstrates that the Agency has elected to bargain on section 7106(b)(1) matters. As set forth below in Section VI, we reject the Union's bare assertion that the proposals concern matters set forth in section 7106(b)(1). Consequently, we do not address the Union's request because it is irrelevant to our disposition of this case.

6. The text of section 7117(c)(1) of the Statute and 5 C.F.R. § 2424.1 is set forth in the Appendix.

7. The text of 5 C.F.R. § 2424.3 is set forth in the Appendix.

8. In making its assertion, the Agency states that it entered into the Sharing Agreement pursuant to 38 U.S.C. § 8353. However, based on the Agency's submissions as a whole, it is apparent that its reference to § 8353 is inadvertent and should be to § 8153. 38 U.S.C. § 8153 authorizes the Secretary of Veterans Affairs to contract for the mutual use, or exchange of use, of health-care resources.

9. The CWT personnel referenced in Proposals 1-4 are employed by the State Home and contracted to the Agency pursuant to the Agency's Sharing Agreement to perform some of the Agency's functions. As such, CWT personnel are contract personnel and not employees within the meaning of section 7103(a)(2) and (3) of the Statute and 5 U.S.C. § 105. Because Proposals 1-4 directly implicate nonemployees, the case presents a threshold issue as to the application of the vitally affects test. See American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 501 (1995), petition for review denied sub nom. AFGE, Local 32 v. FLRA, 110 F.3d 810 (D.C. Cir. 1997). However, because we dismiss the petition for review on other grounds, it is not