National Association of Government Employees, Local R1-109 (Union) and United States, Department of Veterans Affairs, Va Connecticut Healthcare System, Newington, Connecticut (Agency)

[ v61 p593 ]

61 FLRA No. 114

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-109
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
VA CONNECTICUT
HEALTHCARE SYSTEM
NEWINGTON, CONNECTICUT
(Agency)

0-NG-2836

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

May 11, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 11 proposals. [n1]  The Agency filed a statement of position and the Union filed a response, to which the Agency filed a reply.

      For the reasons set forth below, we find that proposals 1, 2, 3, 5, 6, 7, 8, and 9 are outside the duty to bargain and proposals 4, 11, and 12 are within the duty to bargain.

II.      Background

      The Agency has two Connecticut facilities: Newington and West Haven. The Union represents the Newington employees and American Federation of Government Employees (AFGE) represents the West Haven employees. Each facility has a Supply Processing and Distribution (SPD) unit where medical and surgical instruments are sterilized. When the Agency decided to renovate the West Haven SPD, it began transporting the medical and surgical instruments from West Haven to Newington at the end of each day for sterilization. The Newington SPD had only one employee who normally worked a day shift. After the Newington facility was tasked with sterilizing West Haven's instruments, the Newington employee's day shift was changed to an evening shift. Subsequently, a West Haven employee was detailed to the Newington facility to assist with the sterilization on the evening shift. The Union's proposals are in response to the Agency's decision to transfer the West Haven sterilization work to the Newington facility.

III.      Proposals

Proposal 1:     The Employer will purchase a sufficient amount of duplicate surgical instruments to allow any
                      additional transferred work due to the renovation of the West Haven SPD facility to be
                      performed on the Newington SPD employee's current daytime tour.
Proposal 2:     The Employer will provide sufficient staffing from existing VA Connecticut SPD staff to
                      allow the transferred work functions due to the renovation of the West Haven SPD facility to
                      be performed at the Newington facility if it is to be performed on other than the daytime tour.
Proposal 3:     The Employer will outsource the transferred work due to the renovation of the West Haven
                      SPD facility to be performed at the Newington facility if it is to be performed on other than
                      the daytime tour.
Proposal 4:     The Employer will agree to a set tour of duty, i.e., 3-11PM or as otherwise negotiated by the
                      parties for the duration of the renovation work.
Proposal 5:     Any proposed new tour(s) of duty beyond the currently established tours for VA Connecticut
                      SPD employees caused by the renovation of the West Haven SPD facility will be posted and
                      all qualified VA Connecticut SPD employees will be [ v61 p594 ] allowed to apply for the
                      temporary detail. Qualifications will be determined by the employer but may be challenged
                      through the negotiated grievance procedure. Upon request the Employer shall provide the
                      Union with a copy of employee qualifications.
Proposal 6:    Any proposed new tour(s) of duty beyond the currently established tours for VA Connecticut
                      SPD employees caused by the renovation of the West Haven SPD facility will be fairly and
                      equitably rotated equitably among qualified VA Connecticut SPD employees. Qualifications
                      will be determined by the employer but may be challenged through the negotiated grievance
                      procedure. Upon request the Employer shall provide the Union with a copy of employee
                      qualifications.
Proposal 7:     Employees assigned tours as in item 6 above may, with the Employers approval, arrange shift
                      swapping.
Proposal 8:     If the Employer receives more than one applicant for the new tour above selection will be
                      based on the employees with the greatest total VA Connecticut time in service.
Proposal 9:     If the Employer does not receive adequate applicants for the new tour above assignment will
                      be based on the employees with the least total VA Connecticut time in service.
Proposal 11:   The Employer will provide coverage for employee leaves due to transferred work functions
                      consistent with the terms of the collective bargaining agreements.
Proposal 12:   The Employer shall maintain the status quo until bargaining is completed.

IV.      Meaning of the Proposals [n2] 

Proposal 1:     The proposal would require the Agency to buy a second set of surgical instruments for the West Haven facility so that surgical procedures in West Haven can continue while the original set of surgical instruments can be sterilized during the day at the Newington facility.
Proposal 2:      The proposal would require the Agency to assign employees from the West Haven facility to the Newington facility if the transferred work must be performed on a shift other than the day shift. The term "existing VA Connecticut SPD staff" refers to the single Newington employee or employees in West Haven who are members of the AFGE.
Proposal 3:      The proposal would require the Agency to either outsource the task of sterilizing the West Haven instruments or assign that task to another VA facility instead of having the task performed at the Newington facility.
Proposal 4:      The proposal would require the Agency to establish a standardized tour of duty for the single Newington employee until renovation of the West Haven facility is complete.
Proposal 5:      If the Agency establishes any new tours of duty at the Newington facility as a result of the West Haven renovations, then the proposal would require the Agency to allow qualified VA Connecticut SPD employees to apply for a detail to work the new tour of duty at the Newington facility.
Proposal 6:      The proposal would require the Agency to rotate qualified employees to the detail described in Proposal 5.
Proposal 7:      Independent of proposal 6, this proposal would permit qualified employees to swap shifts.
[ v61 p595 ]
Proposal 8:      This proposal is linked to proposals 5 and 6 and would require the Agency to assign employees to the detail described in proposal 5 by seniority, based on time served at the VA, Connecticut, if more than one employee applies for the detail.
Proposal 9:      This proposal is also linked to proposals 5 and 6 and would require the Agency to staff the detail referred to in proposal 5 using inverse seniority if an insufficient number of employees applies for the detail.
Proposal 11:      The proposal would require the Agency to grant leave pursuant to the terms of the collective bargaining agreements and would require the Agency to provide additional personnel to cover the shift of an employee who has been granted leave.
Proposal 12:      The proposal would require the Agency to maintain the status quo at the Newington facility, as it existed before the West Haven renovations, until bargaining is complete.

V.      Preliminary Issue

      The Union moves to dismiss the Agency's statement of position because the Union claims that the document was untimely filed and was not properly served on the Union representative, in violation of 5 C.F.R. § 2429. However, the record demonstrates that the Agency's statement of position, which was due to be filed with the Authority by August 5, 2005, was in fact timely filed with the Authority on August 3, 2005. Moreover, although service to the Union was not perfected at the time of the Agency's timely filing, the deficiency was eventually cured and the Union was granted an extension of time to file its response. As such, the Union was not harmed by the delay in service and, therefore, has not demonstrated a sufficient basis to dismiss the Agency's statement of position. We therefore deny the Union's motion to dismiss.

VI.      Positions of the Parties

A.      Agency

      The Agency claims it has taken actions that render proposals 2, 4, and 11 moot. In this regard, as noted above, the Agency detailed an employee from West Haven to Newington to assist the Newington employee on the evening shift. According to the Agency, the detailed West Haven employee provides coverage for the Newington employee when she is on leave and the Newington employee has been assigned an established tour of duty to accomplish the task of sterilizing the West Haven instruments. To support its claim that the proposals are moot, the Agency relies on Authority precedent holding that a petition for review becomes moot if the parties come to an agreement about the subject matter of the proposals within the petition. See Statement of Position at 7 (citing Int'l Organization of Masters, Mates and Pilots, Marine Div., Panama Canal Pilots Branch, 52 FLRA 251, 254 (1996) (Masters, Mates, and Pilots) and Fed. Employees Metal Trades Council, AFL-CIO, 7 FLRA 701, 701-02 (1982) (Metal Trades Council)).

      According to the Agency, "the [U]nion's proposals must logically be viewed as alternatives to one another[.]" Id. at 8. As such, the Agency asserts that, in view of its actions rendering proposals 2, 4, and 11 moot, "the balance of the proposals are likewise moot, as there remains no need to purchase additional surgical instruments, to contract out the sterilization work, to post vacancy announcements for a vacant new tour, or to select employees for such vacancies." Id.

      In the alternative, the Agency argues that proposal 1 impermissibly interferes with its rights to determine its budget and assign work under § 7106(a) of the Statute and to determine the number of employees assigned to a tour of duty under § 7106(b)(1) of the Statute. As to its budget, the Agency claims it would incur great costs in order to comply with the Union's proposal. As for its rights to assign work and establish tours of duty, the Agency asserts that the proposal would require it to change the Newington employee's evening shift to a day shift.

      The Agency further argues that proposals 2, 5, 6, 7, 8, and 9 are outside the duty to bargain because they concern employees in a different bargaining unit. In this connection, the Agency claims that all VA Connecticut SPD employees, except the one employee in Newington, are members of the AFGE bargaining unit. The Agency claims that the Union's proposals relate to "recruiting and selecting other VA Connecticut SPD employees to replace or assist" the sole Newington SPD employee, and to do so using either seniority or reverse seniority. Id. The Agency relies on Authority and United States Court of Appeals for the D.C. Circuit precedent holding that proposals that directly determine conditions of employment of employees in other bargaining units are outside the duty to bargain. See id. at 9 (citing Dep't of the Navy v. FLRA, 952 F.2d 1434 (D.C. [ v61 p596 ] Cir. 1992); AFGE, Local 1985, 55 FLRA 1145 (1999) (proposal 3); and AFGE, Local 2879, AFL-CIO, 49 FLRA 1074, 1089 (1994) (Local 2879)).

      Finally, the Agency claims that proposal 3 would require it to outsource the task of sterilizing the West Haven instruments without making a detailed cost comparison as required by the Office of Management and Budget (OMB) Circular A-76. As such, the Agency argues that the proposal directly interferes with its right to make determinations with respect to contracting out under § 7106(a)(2)(B) of the Statute, and is contrary to law.

      The Agency did not specifically address proposal 12.

B.      Union

      According to the Union, the Agency's unilateral actions in assigning the Newington employee an evening shift and detailing another employee to Newington from West Haven do not establish that proposals 2, 4, and 11 are moot. According to the Union, the parties have not bargained or reached an agreement.

      The Union disputes the Agency's claim that it would incur great costs by complying with proposal 1. According to the Union, the proposal is a procedure or an appropriate arrangement.

      The Union asserts that the Agency's decision to transfer West Haven's sterilization work to Newington adversely affects the Newington employee and, therefore, the Union claims that proposal 3 is an appropriate arrangement.

      Turning to proposal 4, the Union notes that the Agency's only argument is that the proposal is moot, which the Union disputes.

      The Union further asserts that proposals 2, 5, 6, 7, 8, 9, and 11 do not seek to specify conditions of employment for AFGE members, but have only an "incidental" effect on them. Response at 7-8.

      Finally, noting that the Agency has taken no position on proposal 12, the Union claims that the proposal is negotiable because it "effectuates the purpose of the [S]tatute[.]" Id. at 9.

VII.      Analysis and Conclusions

A.     The Union's proposals are not moot.

      Section 2429.10 of the Regulations states that the Authority will not issue advisory opinions. Thus, where the issues that led to the filing of a negotiability petition for review have been resolved, or where there is no longer a dispute between the parties, the Authority will dismiss the petition for review as moot. See AFGE, Nat'l Veterans Admin. Council, 41 FLRA 73, 74 (1991) (citing AFGE, Local 85, 32 FLRA 210, 211-12 (1988)). The Authority will also dismiss petitions for review as moot in cases where a proposal requires some action on a date that has passed and there is no explanation in the record as to how the proposal could be implemented. See id. (citing NTEU, 38 FLRA 263 (1990) (Proposal 1)).

      Here, the Agency claims it has already taken actions consistent with proposals 2, 4, and 11, thus mooting all of the Union's proposals. Relying on Masters, Mates, and Pilots and Metal Trades Council, the Agency claims that its actions, in effect, constitute an agreement between the parties over the subject matter of the proposals. For the reasons explained below, we reject the Agency's claim and find that the Union's proposals are not moot.

      In Masters, Mates, and Pilots, the Authority found the proposals moot because the parties had met and reached a valid, binding agreement disposing of the subject matter in the disputed proposal, as evidenced by a written memorandum of understanding and an appendix, which resolved the matter in dispute. In Metal Trades Council, the Authority found that the union's proposal was moot because the agency claimed, and the union did not dispute, that subsequent to the negotiability appeal, the parties continued bargaining and eventually reached agreement on a proposal relating to the subject matter at issue in the union's negotiability appeal. Here, the Agency does not allege, and there is no indication in the record, that the parties subsequently met over the Union's proposals or reached an agreement resolving the issues raised in the Union's proposals. Furthermore, unlike the union in Metal Trades Council, the Union in this case specifically disputes the Agency's claim that an agreement has been reached. Consequently, the Agency has not demonstrated that the Union's proposals are moot.

B.      Proposals 4, 11, and 12 are within the Agency's duty to bargain.

      With respect to proposals 4, 11 and 12, the Agency does not make any arguments that the proposals are outside the duty to bargain, apart from its claim that the proposals are moot. As such, the Agency provides no basis for the Authority to find that the proposals are non-negotiable. We note that the Agency asserted in its allegation of non-negotiability that proposals 4 and 11 are covered by the parties' agreement. However, the [ v61 p597 ] Agency does not make such a claim in its statement of position or reply. 5 C.F.R. § 2424.32(c)(ii) bars the Authority's consideration of "[a]rguments that could have been but were not raised by an agency in the statement of position, or made in its reply to the exclusive representative's response . . . ." As the Agency did not set forth its covered by argument in its statement of position or reply, we will not consider it. We therefore find that proposals 4, 11, and 12 are within the Agency's duty to bargain.

C.      Proposal 1 violates the Agency's right to assign work.

      The Agency argues, and the Union does not dispute, that proposal 1 affects the Agency's right to assign work. The Union asserts that the proposal constitutes a procedure and an appropriate arrangement. However, the Union provides no argument or authority to support its assertions that this proposal constitutes a procedure or an appropriate arrangement under § 7106(b)(2) and (3) of the Statute. Consistent with Authority precedent, the Union's claim is a bare assertion and is denied. See LIUNA, Local 28, 58 FLRA 605, 607 (2003); Tidewater Virginia, Federal Employees Metal Trades Council, 58 FLRA 561, 563 (2003). Therefore, as proposal 1 undisputedly affects the Agency's right to assign work, we conclude that proposal 1 is nonnegotiable. [n3] 

D.      Proposals 2, 5, 6, 7, 8, and 9 determine conditions of employment for employees in another bargaining unit.

      A proposal that directly determines conditions of employment of employees in other bargaining units is outside the duty to bargain. See, e.g., Local 2879, AFL-CIO, 49 FLRA at 1089. As the Court of Appeals for the D.C. Circuit has explained:

We are not aware of any case -- in either the public or private sectors -- in which an employer has been required to bargain with a union over the conditions of employment of employees in another bargaining unit . . . . There is a good reason why no such case appears to exist -- for a court to so hold would violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only.

United States Dep't of the Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d 1434, 1442 (D.C. Cir. 1992) (Cherry Point).

      Applying Cherry Point, the Authority has determined that "[a]n agency is not required under the Statute to bargain with one exclusive representative about conditions of employment in a unit represented by another union because such a requirement would run afoul of the principle of exclusive recognition." AFGE, Nat'l Council of HUD Locals 222, 54 FLRA 1267, 1276 n.11 (1998) (Member Wasserman dissenting as to other matters) (citing AFGE, Local 32, 51 FLRA 491, 505, 507-08 (1995), aff'd sub nom. AFGE v. FLRA, 110 F.3d 810 (D.C. Cir. 1997)).

      Here, there is no dispute that affected employees who work at the West Haven facility are not represented by the Union but, instead, are represented by AFGE. Moreover, the Union's explanation of the meaning of proposal 2 shows that the proposal dictates the conditions of employment of AFGE bargaining unit employees by requiring the Agency, under certain circumstances, to assign employees from the West Haven facility to the Newington facility. In addition, by requiring the Agency to establish a detail for all "qualified VA Connecticut SPD employees[,]" and to rotate them through the detail by seniority or reverse seniority, proposals 5, 6, 8, and 9 also expressly determine the conditions of employment of AFGE bargaining unit employees. Record of Post-Petition Conference at 2. Finally, proposal 7 permits qualified employees to swap shifts, which necessarily affects AFGE bargaining unit employees, as there is only one employee at the Newington SPD. Because the Union's proposals expressly determine the conditions of employment of AFGE unit employees, the effect on those bargaining unit members is not "incidental" as the Union claims. Response at 7-8. We thus conclude that the Union's proposals are outside the duty to bargain. See, e.g., AFGE, Local 1985, 55 FLRA at 1151 (finding proposal 3 outside duty to bargain because the proposal, by its express terms, determined conditions of employment for employees in another union).

E.      Proposal 3 is outside the duty to bargain under § 7117(a)(1) of the Statute

      Section 7117(a)(1) of the Statute precludes bargaining over proposals that are inconsistent with a government-wide regulation. See, e.g., FOP, Lodge #1F, 57 FLRA 373, 378 (2001). The Authority has previously recognized that Circular A-76 is a government-wide regulation. See AFGE, Local 1345, 48 FLRA 168, 206 (1993) (adopting court decision in United States Dep't of the Treasury, Internal Revenue Serv. v. FLRA, [ v61 p598 ] 996 F.2d 1246, 1250 (D.C. Cir. 1993)). As such, a proposal that is inconsistent with Circular A-76 is outside the duty to bargain under § 7117(a)(1) of the Statute.

      The Agency claims that proposal 3 requires it to contract out the work at issue without conducting a detailed cost comparison determination, in violation of Circular A-76, which establishes federal policy for the competition of commercial activities.