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12:0600(110)NG - NFFE Local 1579 and VA Regional Office, Louisville, KY -- 1983 FLRAdec NG

[ v12 p600 ]
The decision of the Authority follows:

 12 FLRA No. 110
                                            Case No. O-NG-308
    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
          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
 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,
                                       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).