09:0998(139)NG - NFFE Local l43l and VA Medical Center, East Orange, NJ -- 1982 FLRAdec NG

 9 FLRA No. 139
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1431
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, EAST
 ORANGE, NEW JERSEY
 Agency
 
                                            Case No. O-NG-245
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 RAISES THE QUESTION OF THE NEGOTIABILITY OF ONE UNION PROPOSAL.  UPON
 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE AUTHORITY MAKES THE
 FOLLOWING DETERMINATIONS.
 
                              UNION PROPOSAL
 
    THE UNION WILL HAVE A REPRESENTATIVE ON THE PROFESSIONAL STANDARDS
 BOARDS AND THE POSITION
 
    MANAGEMENT COMMITTEE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
 MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS INCONSISTENT WITH THE
 RIGHTS OF MANAGEMENT UNDER SECTION 7106(A) AND (B) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.  /1/
 
    REASONS:  THE AUTHORITY HAS CONSISTENTLY HELD THAT THE MANAGEMENT
 RIGHTS ENUMERATED IN SECTION 7106 INCLUDE MORE THAN MERELY THE RIGHT TO
 DECIDE TO TAKE THE FINAL ACTIONS SPECIFIED.  SEE E.G., AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 613(1980),
 ENFORCED SUB NOM. DEPARTMENT OF DEFENSE, V. FLRA 659 F.2D 1140,
 1160-61(D.C.CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. . . . ,
 102 S.CT. 1443(1982);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE, OKLAHOMA, 7 FLRA NO.
 45(1981).  FOR EXAMPLE, THE AUTHORITY HAS HELD THAT THE RIGHT OF
 MANAGEMENT OFFICIALS UNDER SECTION 7106(A)(2)(B) TO MAKE DETERMINATIONS
 WITH RESPECT TO CONTRACTING OUT ENCOMPASSES NOT ONLY THE RIGHT TO ACT IN
 THIS REGARD BUT ALSO THE RIGHT TO DISCUSS AND DELIBERATE CONCERNING THE
 RELEVANT FACTORS UPON WHICH SUCH A DETERMINATION WILL BE MADE.  NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR
 FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
 FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), ENFORCED SUB NOM. NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR.
 1982).  THUS, WHEN MANAGEMENT ESTABLISHES FORMAL ORGANIZATIONAL
 STRUCTURES TO UNDERTAKE SUCH DELIBERATIONS AS AN INTEGRAL PART OF ITS
 SUBSTANTIVE DECISION-MAKING PROCESS, A PROPOSAL WHICH WOULD REQUIRE
 UNION PARTICIPATION WOULD HAVE THE EFFECT OF DIRECTLY INTERFERING WITH
 MANAGEMENT'S STATUTORY RIGHT TO MAKE THE DECISIONS INVOLVED.
 
    BASED ON THE UNCONTROVERTED STATEMENTS OF THE AGENCY IN THE RECORD OF
 THIS CASE, /2/ THE POSITION MANAGEMENT COMMITTEE REFERRED TO IN THE
 DISPUTED PROPOSAL WAS ESTABLISHED PURSUANT TO AN INTERNAL AGENCY
 REGULATION TO ASSIST THE DIRECTOR OF THE MEDICAL CENTER IN THE
 IMPLEMENTATION OF THE AGENCY'S POSITION MANAGEMENT PROGRAM.  IT IS
 COMPOSED ENTIRELY OF MANAGEMENT OFFICIALS.  THE COMMITTEE REVIEWS THE
 OVERALL DISTRIBUTION OF WORK AT THE MEDICAL CENTER, INCLUDING PROPOSED
 CHANGES IN ORGANIZATIONAL STRUCTURE AS THEY RELATE TO WORK DESIGN,
 OCCUPATIONAL AND GRADE DISTRIBUTION, AND STAFFING REQUIREMENTS.  AS A
 RESULT OF ITS REVIEW OF THESE MATTERS, THE COMMITTEE MAY RECOMMEND TO
 THE DIRECTOR VARIOUS COURSES OF ACTION THAT COULD BE TAKEN IN REGARD TO
 POSITION MANAGEMENT AT THE MEDICAL CENTER.  /3/ THUS, THE POSITION
 MANAGEMENT COMMITTEE CONSTITUTES AN INTEGRAL PART OF THE MANAGERIAL
 DECISION-MAKING PROCESS AS IT RELATES TO MATTERS CONCERNING THE
 ORGANIZATION AND STAFFING OF THE MEDICAL CENTER AND THE ASSIGNMENT OF
 WORK TO EMPLOYEES, ALL OF WHICH MATTERS INVOLVE THE EXERCISE OF
 MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE.  /4/
 
    BASED FURTHER ON THE AGENCY'S UNCONTROVERTED STATEMENTS, THE
 PROFESSIONAL STANDARDS BOARDS REFERRED TO IN THE PROPOSAL WERE
 ESTABLISHED BY VETERANS ADMINISTRATION REGULATIONS /5/ PROMULGATED
 PURSUANT TO 38 U.S.C. 4106.  /6/ SUCH BOARDS CONDUCT REVIEWS AND MAKE
 RECOMMENDATIONS TO DESIGNATED MANAGEMENT OFFICIALS CONCERNING ALL
 APPLICATIONS FOR PROFESSIONAL EMPLOYMENT AND THE PERFORMANCE OF
 PROBATIONARY PROFESSIONAL EMPLOYEES.  IN PARTICULAR, THE BOARDS DECIDE
 WHETHER TO RETAIN OR REMOVE SUCH PROBATIONARY EMPLOYEES.  THIS LATTER
 DECISION IS, IN EFFECT, THE FINAL AGENCY ACTION SINCE, UNDER SEC. 4106,
 IT IS NOT SUBJECT TO FURTHER REVIEW WITHIN THE AGENCY.  SEE GIORDANO V.
 ROUDEBUSH, 617 F.2D 511(8TH CIR. 1980).  IN ADDITION, PROFESSIONAL
 STANDARDS BOARDS REVIEW THE COMPETENCY OF PROFESSIONAL EMPLOYEES WHO
 HAVE COMPLETED THE PROBATIONARY PERIOD TO DETERMINE WHETHER TO
 RECOMMEND
 COMMENCEMENT OF DISCIPLINARY PROCEEDINGS.  THUS, THE BOARDS CONSTITUTE A
 STATUTORILY MANDATED DECISION-MAKING PROCESS WHEREBY MANAGEMENT'S
 AUTHORITY UNDER SECTION 7106 OF THE STATUTE TO HIRE AND TO RETAIN OR
 REMOVE EMPLOYEES, IS EXERCISED THROUGH PROFESSIONAL PEER REVIEW.  /7/
 
    IN SUM, THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
 STANDARDS BOARDS WERE ESTABLISHED BY AGENCY MANAGEMENT TO REVIEW, MAKE
 RECOMMENDATIONS, AND TAKE ACTION WITH RESPECT TO MATTERS INVOLVING THE
 EXERCISE OF MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE.  AS
 SUCH, THE COMMITTEE AND THE BOARDS ARE INTEGRAL PARTS OF THE PROCESS BY
 WHICH MANAGEMENT DECIDES AND ACTS PURSUANT TO THOSE RIGHTS.  THE UNION
 PROPOSAL HEREIN WOULD REQUIRE THAT A UNION REPRESENTATIVE PARTICIPATE IN
 THE MEETINGS OF THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
 STANDARDS BOARDS.  BY SO PROVIDING, THE PROPOSAL, LIKE THE PROPOSAL AT
 ISSUE IN HOMESTEAD AIR FORCE BASE, WOULD ALLOW THE UNION TO INTERJECT
 ITSELF INTO THAT DECISION-MAKING PROCESS AND THEREBY WOULD PREVENT
 MANAGEMENT OFFICIALS FROM ENGAGING IN FREE AND OPEN DELIBERATIONS AMONG
 THEMSELVES.  SUCH DELIBERATIONS ARE AN ESSENTIAL PART OF MANAGEMENT'S
 RIGHT TO MAKE DECISIONS UNDER SECTION 7106 OF THE STATUTE.  THE DISPUTED
 PROPOSAL WOULD THEREBY IMPAIR THE FLEXIBILITY WHICH CONGRESS INTENDED
 MANAGEMENT OFFICIALS TO HAVE UNDER THE STATUTE.  SEE DEPARTMENT OF
 DEFENSE V. FLRA, 659 F.2D 1140, 1159-60(D.C. CIR. 1981).  /8/ THUS, THE
 UNION PROPOSAL AT ISSUE HEREIN, FOR THE REASONS SET FORTH IN THE
 HOMESTEAD AIR FORCE BASE DECISION, WOULD DIRECTLY INTERFERE WITH
 MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE AND, THEREFORE, IS
 OUTSIDE THE DUTY TO BARGAIN.  /9/
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN LIGHT OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY
 TO ADDRESS THE OTHER CONTENTIONS OF THE AGENCY CONCERNING THE
 NEGOTIABILITY OF THE UNION'S PROPOSAL.
 
    /2/ BECAUSE THE UNION DID NOT FILE A RESPONSE TO THE AGENCY'S
 STATEMENT OF POSITION, THE AUTHORITY MAY PROPERLY ACCEPT THE AGENCY'S
 UNCONTROVERTED FACTUAL ASSERTIONS.  SEE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR.  1982) AT 10 OF SLIP
 OPINION.
 
    /3/ SEE VETERANS ADMINISTRATION CIRCULAR 00-76-40 (SEPT. 30, 1976).
 
    /4/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND AND LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /5/ VETERANS ADMINISTRATION REGULATION MP-5, PART II, CHAPTER 2,
 PARA. 5.  SEE ALSO SUPPLEMENT, MP-5, PART II, CHAPTER 2, PARA. 2.05.
 
    /6/ 38 U.S.C. 4106 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 4106.  PERIOD OF APPOINTMENTS;  PROMOTIONS
 
    (A) APPOINTMENTS OF PHYSICIANS, DENTISTS, PODIATRISTS, OPTOMETRISTS,
 AND NURSES SHALL BE
 
    MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED
 IN ACCORDANCE WITH
 
    REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO
 CIVIL-SERVICE REQUIREMENTS.
 
    (B) SUCH APPOINTMENTS AS DESCRIBED IN SUBSECTION (A) OF THIS SECTION
 SHALL BE FOR A
 
    PROBATIONARY PERIOD OF TWO YEARS AND THE RECORD OF EACH PERSON
 SERVING UNDER SUCH APPOINTMENT
 
    IN THE MEDICAL, DENTAL, AND NURSING SERVICES SHALL BE REVIEWED FROM
 TIME TO TIME BY A BOARD,
 
    APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, AND IF
 SAID BOARD SHALL FIND
 
    HIM NOT FULLY QUALIFIED AND SATISFACTORY HE SHALL BE SEPARATED FROM
 THE SERVICE.
 
    /7/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES(.)
 
    /8/ IN THIS REGARD, SEE THE HOUSE COMMITTEE REPORT CONCERNING THE
 MANAGEMENT RIGHTS PROVISION, WHICH STATED THAT SECTION 7106 WAS INTENDED
 IN PART "TO PRESERVE THE ESSENTIAL PREROGATIVES AND FLEXIBILITY FEDERAL
 MANAGERS MUST HAVE." H.R. REP. NO. 95-1403, 95TH CONG., 2ND SESS.
 43-44(1978).  SEE ALSO THE STATEMENT OF CONGRESSMAN UDALL CONCERNING HIS
 SUBSTITUTE AMENDMENT FOR THE HOUSE COMMITTEE BILL, WHEREIN HE
 CHARACTERIZED THE SUBSTITUTE AS "BASICALLY A BILL TO GIVE MANAGEMENT THE
 POWER TO MANAGE AND THE FLEXIBILITY THAT IT NEEDS." 124 CONG.REC.H9633
 (DAILY ED. SEPT. 13, 1978).
 
    /9/ COMPARE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
 SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 255(1979) AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3804 AND
 FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO, ILLINOIS, 7 FLRA NO.
 34(1981), IN WHICH THE AUTHORITY FOUND PROPOSALS INSURING UNION INPUT TO
 THE FINAL AGENCY DECISION, WHILE PRESERVING THE INTEGRITY OF THE PROCESS
 WHEREBY MANAGEMENT REACHES THAT DECISION, WITHIN THE DUTY TO BARGAIN.
 THE AUTHORITY ALSO NOTES THAT THE PROPOSAL IN THE INSTANT CASE DOES NOT
 INVOLVE LABOR-MANAGEMENT COMMITTEES TO DEAL WITH MATTERS WHICH ARE
 THEMSELVES WITHIN THE DUTY TO BARGAIN.