09:1022(141)NG - AFGE Local 3399 and Harry S. Truman Memorial Veterans Hospital, Columbia, MO -- 1982 FLRAdec NG

 9 FLRA No. 141
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3399
 Union
 
 and
 
 HARRY S. TRUMAN
 MEMORIAL VETERANS
 HOSPITAL, COLUMBIA, MISSOURI
 Agency
 
                                            Case No. O-NG-380
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 ISSUES REGARDING THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
 PROPOSALS.  UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE
 AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.  /1/
 
                             UNION PROPOSAL 1
 
    RETAIN PARKING LOTS A AND D EXCLUSIVELY FOR THE USE OF EMPLOYEES.
 
                             UNION PROPOSAL 2
 
    HOSPITAL TO CONSTRUCT A SET OF ENTRANCE AND EXIT GATES TO BE ADDED TO
 THE EAST END OF
 
    PARKING LOT D IN ORDER TO ALLOW TRAFFIC FLOW DIRECTLY TO AND FROM
 MONK DRIVE.
 
    THE NEGOTIABILITY DISPUTE CONCERNS WHICH OF THE AGENCY'S PARKING
 FACILITIES WILL BE USED BY EMPLOYEES.  IT ARISES OUT OF THE SAME FACTS
 AND CIRCUMSTANCES AS AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE UNION
 (7-CA-756);  THE CHARGE INVOLVED THE ALLEGED FAILURE OF THE AGENCY TO
 NEGOTIATE ITS DECISION TO USE ITS PARKING LOT A AT THE HOSPITAL FOR
 VISITOR RATHER THAN EMPLOYEE PARKING AND TO USE ITS LOT B FOR EMPLOYEE
 RATHER THAN VISITOR AND PATIENT PARKING.  INSOFAR AS THE DISPOSITION OF
 THE CHARGE RELATES TO PROPOSAL 1, HEREIN, THE REGIONAL DIRECTOR FOUND
 THAT ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY'S
 DECISION CONCERNED THE USE OF ITS PARKING FACILITIES IN ORDER TO
 "ACCOMMODATE ITS CLIENTELE MOST EFFECTIVELY . .  . NOT A MANDATORILY
 BARGAINABLE MATTER." INSOFAR AS DISPOSITION OF THE CHARGE RELATES TO
 PROPOSAL 2, HEREIN, THE REGIONAL DIRECTOR FOUND ESSENTIALLY THAT
 ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY HAD
 FULFILLED ITS OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION
 OF ITS DECISION PRIOR TO ACTUAL IMPLEMENTATION.  NO APPEAL OF THE
 REGIONAL DIRECTOR'S DETERMINATION WAS TAKEN TO THE GENERAL COUNSEL.
 
    NOTING THAT THE FACTUAL CIRCUMSTANCES INVOLVED IN THE DISPUTE IN THIS
 CASE ARE UNCLEAR BASED SOLELY UPON THE UNION'S SUBMISSIONS, SEE NOTE 1,
 SUPRA, AND NOTING FURTHER THAT NO APPEAL WAS TAKEN FROM THE REGIONAL
 DIRECTOR'S DECISION TO DISMISS THE UNFAIR LABOR PRACTICE CHARGE, THE
 AUTHORITY REFERS TO THE FACTS SET FORTH IN THE REGIONAL DIRECTOR'S
 DECISION.  /2/ PROPOSAL 1 WOULD REQUIRE BARGAINING OVER MANAGEMENT'S
 DECISION AS TO WHICH OF THE AGENCY'S PARKING FACILITIES WILL BE USED TO
 ACCOMMODATE ITS CLIENTELE.  IT WOULD REQUIRE "EXCLUSIVE" USE BY
 EMPLOYEES OF THOSE FACILITIES WHICH MANAGEMENT HAS DESIGNATED FOR USE BY
 HOSPITAL CLIENTELE IN ORDER TO ACCOMMODATE THEM MOST EFFECTIVELY.  THE
 AUTHORITY CONCLUDES THAT SUCH A DESIGNATION BY THE AGENCY CONCERNING THE
 USE OF ITS PARKING FACILITY IS A DETERMINATION WITH RESPECT TO THE
 "MEANS OF PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF
 THE STATUTE.  SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
 SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254, 258(1979).
 THE PROPOSAL WOULD DIRECTLY INTERFERE WITH MANAGEMENT'S DETERMINATION,
 IN EFFECT, PREVENTING MANAGEMENT FROM ACHIEVING ITS INTENDED RESULT.
 UNDER THE STATUTE, DETERMINATIONS AS TO THE MEANS OF PERFORMING WORK ARE
 NOT WITHIN THE DUTY TO BARGAIN ALTHOUGH THEY ARE NEGOTIABLE AT THE
 ELECTION OF THE AGENCY.  HERE, THE AGENCY HAS ELECTED NOT TO BARGAIN.
 
    AS TO PROPOSAL 2, IT WOULD NOT REQUIRE NEGOTIATIONS OVER MANAGEMENT'S
 DECISION AS TO WHICH PARKING FACILITIES WILL BE USED BY AGENCY
 CLIENTELE.  RATHER, IT IS CONCERNED WITH THE IMPACT AND IMPLEMENTATION
 OF THAT DECISION.  HOWEVER, AS ALREADY MENTIONED, THE REGIONAL DIRECTOR
 REFUSED TO ISSUE A COMPLAINT IN THE RELATED UNFAIR LABOR PRACTICE CASE
 BECAUSE HE FOUND THAT THE AGENCY HAD MET ITS DUTY TO BARGAIN WITH
 RESPECT TO IMPACT AND IMPLEMENTATION OF ITS DECISION.  HENCE, IT IS
 CONCLUDED THAT THE NEGOTIABILITY ISSUE RAISED BY PROPOSAL 2 IS MOOT.
 CF. CASES CITED NOTE 2 SUPRA (NEGOTIABILITY ISSUES RENDERED MOOT BY
 REGIONAL DIRECOTR'S DECISIONS THAT NO CHANGES IN AGENCY POLICY SUCH AS
 TO GIVE RISE TO BARGAINING OBLIGATIONS).
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW AS TO PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.
 FURTHER, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IT ORDERED
 THAT THE UNION'S PETITION FOR REVIEW AS TO PROPOSAL 2 BE, AND IT HEREBY
 IS, DISMISSED.
 
    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/ THE AGENCY'S STATEMENT OF POSITION WAS FILED MORE THAN THIRTY
 DAYS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS
 IS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS IS
 UNTIMELY UNDER SECTION 7117(C)(3) OF THE STATUTE AND SECTION 2424.6 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.6(1981)).  THEREFORE,
 THE AGENCY'S STATEMENT HAS NOT BEEN CONSIDERED BY THE AUTHORITY IN
 MAKING ITS DECISION HEREIN.  ADDITIONALLY, THE AGENCY'S MOTIONS FOR
 LEAVE TO FILE ADDITIONAL DOCUMENTS ARE DENIED.  SEE 5 CFR 2424.8(1981).
 
    /2/ IN THIS REGARD, THE AUTHORITY REFERS ONLY TO THE FACTUAL
 CONCLUSIONS DRAWN BY THE REGIONAL DIRECTOR AND DOES NOT RELY UPON THE
 REGIONAL DIRECTOR'S CONCLUSION THAT THE PROPOSAL IS "NOT A MANDATORILY
 BARGAINABLE MATTER." SEE GENERALLY NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN,
 KOREA, 8 FLRA NO.  26(1982);  NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN, KOREA, 8 FLRA
 NO. 39(1982).