[ v12 p600 ]
The decision of the Authority follows:
12 FLRA No. 110 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1579 Union and VETERANS ADMINISTRATION REGIONAL OFFICE, LOUISVILLE, KENTUCKY Agency Case No. O-NG-308 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of two Union proposals. Union Proposal 1 Proposal 1 - INCENTIVE AWARDS 1. The Employer agrees that the Union shall have two (2) representatives on the Incentive Awards Committee. Said representatives will participate in deliberations and discussions with respect to planning the suggestion program, stimulating participation, establishing goals and targets, evaluating progress, and appraising employee, supervisor, and management reactions. 2. During evaluations and voting procedures with respect to nominees for Incentive Awards, the Union representatives shall serve as participating members of the committee. Question Before the Authority The question presented is whether Union Proposal 1 is, as alleged by the Agency, inconsistent with section 7106(a)(2)(B) of the Statute or is otherwise outside the duty to bargain since it would apply to nonunit employees. Opinion Conclusion and Order: Union Proposal 1 is not inconsistent with section 7106(a)(2)(B) of the Statute, nor does it extend to employees who are not in the bargaining unit. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on this proposal. /1/ Reasons: Paragraph 1 of Union Proposal 1 would place two Union representatives on the Incentive Awards Committee and would, in effect, require the Committee to participate in planning, stimulating participation in, and evaluating the suggestion program. As to paragraph 1, the Agency's sole contention is that, since it has already delegated responsibility over the suggestion program to the Personnel Officer, negotiations over the proposal would be inconsistent with its right to assign work under section 7106(a)(2)(B). /2/ However, the proposal herein would authorize a procedure for union participation in the administration of a program which directly concerns conditions of employment of bargaining unit employees, see National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA No. 62 (1983), and is in no manner concerned with management's assignment of work to management representatives. See American Federation of Government Employees, AFL-CIO, Local 1886 and Marine Corps Development and Education Command, Quantico, Virginia, 2 FLRA 423 (1980). Moreover, the Agency has not alleged, nor is it otherwise apparent, that any applicable law, rule, or regulation vests in management the sole and exclusive right to establish and execute a suggestion program or otherwise precludes negotiation over such a program. /3/ Accordingly, the Agency's contention that paragraph 1 of Union Proposal 1 is not within the duty to bargain cannot be sustained. Paragraph 2 of Union Proposal 1 would require that the Union representatives on the Incentive Awards Committee serve as participating members in evaluating and voting on nominees for incentive awards. In that regard, as acknowledged by the Union, the Incentive Awards Committee only makes recommendations to the Regional Director, who has the final authority to approve or disapprove any recommended award. /4/ The Agency's sole contention as to paragraph 2 is that the language of the proposal would establish an Incentive Awards Committee to administer the incentive awards program for the entire Agency, which would include employees who are not within the unit represented by the Union. 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). Although on its face the proposal does not limit the role of Union representatives only to matters involving unit employees, the Union explicitly states that as its intent, /5/ and this interpretation is not inconsistent with the language of the proposal and is adopted for the purposes of this decision. /6/ So interpreted, paragraph 2 of the proposal herein pertains to the conditions of employment of employees represented by the Union, and therefore, is within the duty to bargain. Union Proposal 2 FLEXITIME: Employees, at their election, shall work a standard core period of three (3) hours between 11 am and 2 pm. Employees, at their election, may begin work at any time prior to this core period, and may leave work at any time after this core period, so long as the total number of hours worked during the day (exclusive of non-paid lunch period) is eight (8) hours. For employees working other than the normal tour of duty, similar flexible schedules shall be established through negotiations between the parties. Exceptions to this policy shall be made only following mutual agreement of the parties through negotiations. Union Proposal 2 would mandate bargaining over the establishment of flexible schedules and exceptions thereto, and would set certain core and flexible hours of work for bargaining unit employees. However, effective July 23, 1982, the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227, inter alia, added a new section 6131 to title 5, U.S. Code, which prescribes the criteria and review procedures governing the establishment or termination of a flexible or compressed schedule where the head of an agency determines that such schedule would have an adverse agency impact. Since neither party has had the opportunity to address the impact of Pub. L. No. 97-221 upon the matters involved in the instant proposal, IT IS ORDERED that the Union's petition for review as to Proposal 2 be, and it hereby is, dismissed, without passing upon the merits of the appeal and without prejudice to the refiling of an appeal, pursuant to the Rules and Regulations of the Authority, after the parties have considered the impact of Pub. L. No. 97-221 upon the matters involved in the proposal. Issued, Washington, D.C., August 16, 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, the Authority, of course, makes no judgment as to its merits. /2/ Section 7106(a)(2)(B) of the Statute provides 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-- . . . . (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.) /3/ Cf. 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) (Proposal 3), affirmed sub nom. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982) (involvement of the exclusive representative in sessions where agency officials are engaged in managerial deliberations and discussions as part of their decision-making process, held to directly interfere with management's rights to make determinations with respect to contracting out). /4/ Union Statement of July 1, 1980 at 3. /5/ Union Statement of July 1, 1980 at 3. /6/ See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 783, 793 (1980) (Union Proposal 5).