12:0270(62)NG - NFFE Local 541 and VA Hospital, Long Beach, CA -- 1983 FLRAdec NG

 12 FLRA No. 62
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 541
 Union
 
 and
 
 VETERANS ADMINISTRATION
 HOSPITAL, LONG BEACH,
 CALIFORNIA
 Agency
 
                                            Case No. O-NG-275
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of a single Union proposal.  Upon careful consideration of
 the entire record, including the parties' contentions, the Authority
 makes the following determinations.
 
                              Union Proposal
 
          Article XIII - Incentive Awards
 
          A. The employer will develop an incentive awards committee,
       made up of equal members from management and the Union.  It will
       be the responsibility of this committee to design, develop, and
       administer the Incentive Awards Program for this Medical Center.
 
          B.  The committee will encourage supervisors at all levels to
       utilize the Incentive Awards Program to recognize employees they
       consider deserving such recognition.  The committee will
       investigate services which do not participate in the program.
 
          C. The committee will review all nominations for incentive
       awards and through open deliberations select those nominees they
       feel deserving of the award.  The committee will forward these
       names to the Director for final approval.  Should the Director
       disapprove any of the committee recommendations, the
       recommendation will be returned to the committee with a complete
       explanation for the disapproval.
 
          D.  It will be the committee's responsibility to insure that
       the Incentive Awards Program is administered equally among all
       employees of the Medical Center.
 
          E.  All employees who are nominated for an Incentive Award,
       will receive a letter, informing them of their nomination, and
       thanking them for outstanding contributions.  This letter will be
       issued by the committee and signed by the chairperson.
 
          F. The provisions of this article do not preclude Service
       Chiefs from establishing an internal recognition program for
       employees of their service.
 
                      Questions Before the Authority
 
    The questions are whether the Union's proposal is outside the duty to
 bargain because it extends to nonunit employees or, in the alternative,
 whether it is inconsistent with law or Government-wide regulation.
 
                                  Opinion
 
 Conclusion and Order:  The Union's proposal extends to nonunit employees
 and, to that extent, it is not within the Agency's duty to bargain under
 the Statute.  To the extent the proposal would apply to unit employees,
 it is within the duty to bargain since it is not inconsistent with law
 or Government-wide regulation.  Accordingly, pursuant to section 2424.10
 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS
 ORDERED that the Agency shall upon request (or as otherwise agreed to by
 the parties) bargain on this proposal to the extent that it applies to
 unit employees.  /1/ Reasons:  The Union represents only one of several
 bargaining units at the Medical Center and states its intent that the
 proposal be applied only to the unit it represents.  The language of the
 proposal, however, would establish an incentive awards committee to
 administer the incentive awards program for the entire Medical Center,
 which would include employees who are not within the unit represented by
 the Union (see, in particular, sections A and D of the proposal).  It
 is, of course, clear that an agency has no obligation to bargain with a
 union over conditions of employment of employees not in the bargaining
 unit represented by that union.  Service Employees' International Union,
 AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
 General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA No. 81 (1982).
 However, insofar as the proposal herein pertains to the conditions of
 employment of employees represented by the Union, which could be within
 the duty to bargain, it is necessary to consider further whether the
 proposal is consistent with applicable law and regulations.
 
    The proposal would require the establishment of a joint
 labor-management committee to "design, develop, and administer" an
 incentive awards program.  As to the granting of incentive awards under
 such a program, the committee would have the limited authority to make
 recommendations subject to final approval by the Director of the Medical
 Center.
 
    The Agency concedes that the establishment of a joint
 labor-management committee to administer the incentive awards program
 and make recommendations as to the granting of such awards is a matter
 which is within its discretion under applicable law and regulation, but
 contends that such discretion is not subject to the duty to bargain.  To
 the extent that an agency has discretion with respect to a matter
 affecting the conditions of employment of its employees, that matter is
 within the duty to bargain.  National Treasury Employees Union, Chapter
 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1981).
  See also American Federation of State, County and Municipal Employees,
 AFL-CIO, Local 2477;  American Federation of State, County and Municipal
 Employees, AFL-CIO, Local 2910;  Congressional Research Employees
 Association;  and Law Library of Congress United Association of
 Employees and Library of Congress, Washington, D.C.; American Federation
 of State, County and Municipal Employees, AFL-CIO, Local 2910 and
 Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982), enforced
 sub nom. Library of Congress v. Federal Labor Relations Authority, 699
 F.2d 1280 (D.C. Cir. 1983).  Therefore, the Authority finds, contrary to
 the Agency, that the disputed proposal is within the scope of
 bargaining.
 
    The Agency also contends that the proposal would require it to
 negotiate on the "methods" and "means" of performing its work, matters
 which are negotiable at the election of the Agency under section
 7106(b)(1) of the Statute.  /2/ Contrary to the Agency, the proposal
 would not require it to negotiate as to the method it would use to
 perform its work, i.e., the way in which it provides medical services to
 the nation's veterans.  Cf. American Federation of Government Employees,
 AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and
 Atmospheric Administration, National Marine Fisheries Service, Southeast
 Fisheries Center, Miami Laboratory, Florida, 5 FLRA No. 55 (1981)
 (flexible work schedule not a "method" of performing work).  Nor does
 the proposal concern the means, i.e., the "tools," "devices," or
 "instrumentalities" by which the Agency will do its work.  See American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
 Service, 4 FLRA No. 52 (1981) (firearms held to be a "means" of
 performing work).  Rather, the proposal concerns the procedures
 management will follow in giving incentive awards to employees.  In this
 regard, the proposal is not materially distinguishable from Union
 Proposal 6 in American Federation of Government Employees, AFL-CIO,
 Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, 7 FLRA No. 34 (1981), wherein the Authority held that a
 proposal to establish a committee to make recommendations regarding the
 operation of an agency's performance appraisal system was negotiable as
 a procedure.  Thus, for the reasons set forth in Federal Deposit
 Insurance Corporation, the proposal at issue herein concerns a procedure
 and is within the duty to bargain.
 
    The remaining argument of the Agency is that by requiring it to
 negotiate regarding Union membership on the committee and, thus,
 concerning the assignment of unit employees to tasks associated with the
 committee, the proposal is inconsistent with its right to assign work
 under section 7106(a)(2)(B) of the Statute.  In support of this
 contention, the Agency cites the Authority's decision in American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 622-3
 (1980), enforced as to other matters sub nom. Department of Defense v.
 FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), wherein the Authority
 determined that a proposal requiring the agency to select at least half
 of its Equal Employment Opportunity counselors from among union nominees
 directly interfered with the agency's right to assign work since it
 determined which employee should be assigned those duties.
 
    However, the proposal in the instant case is distinguishable.  In
 particular, the duties associated with being an Equal Employment
 Opportunity counselor, as in Wright-Patterson, are official duty
 assignments prescribed under regulation.  /3/ In contrast, under the
 proposal herein, participation of Union representatives on an incentive
 awards committee would not concern official, prescribed duties.
 Instead, consistent with the purposes of the Statute, the proposal would
 authorize a procedure for union participation in the administration of a
 program directly concerning a condition of employment and would not
 involve the assignment of "work" within the meaning of section
 7106(a)(2)(B) of the Statute.  /4/
 
    Of course, a proposal which would provide for Union representatives
 on such a committee might under different circumstances affect the
 assignment of work to those employees.  In this regard, a proposal which
 would have established an absolute prohibition against the assignment of
 work to employees when such assignment would have conflicted with the
 employees' participation on a management review study was held to
 directly interfere with management's right to assign work under section
 7106(a)(2)(B).  National Association of Government Employees, Local
 R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss,
 Texas, 9 FLRA No. 145 (1982) (Union Proposal 2).  However, the proposal
 herein does not concern what accommodations, if any, might be necessary
 in the scheduling of work.  /5/ Issued, Washington, D.C., July 7, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In deciding that the proposal is within the duty to bargain to
 the extent it applies to unit employees, the Authority makes no judgment
 as to its merits.
 
 
    /2/ Section 7106(b)(1) provides as follows:
 
          Sec. 7106.  Management rights
 
                                .  .  .  .
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, . . . on the technology,
       methods, and means of performing work(.)
 
 
    /3/ As to the Equal Employment Opportunity Counselors, FPM Letter No.
 713-37 (May 20, 1977) provides, in relevant part, as follows:
 
          3.  Official EEO duties and responsibilities assigned to
       employees on a collateral basis must be described in the official
       position description that covers the position the employee
       occupies(.)
 
                                .  .  .  .
 
          a.  Definition.  EEO collateral assignments are official duties
       and responsibilities assigned to any employee in addition to the
       primary duties and responsibilities of the position the employee
       occupies.
 
 
    /4/ Cf. American Federation of Government Employees, AFL-CIO, Local
 3804 and Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, 7 FLRA No. 34 (1981) (Union Proposal 8) (proposal concerning
 official time for negotiable labor-management relations activity is
 within the duty to bargain under section 7131(d) of the Statute).
 
 
    /5/ With regard to such "accommodations," see American Federation of
 Government Employees, AFL-CIO, New Jersey Council of District Office
 Locals and Department of Health and Human Services, Social Security
 Administration District Office Operations, 7 FLRA No. 60 (1981).