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14:0386(62)NG - New York State Nurses Association and VA, Brooklyn Medical Center -- 1984 FLRAdec NG

[ v14 p386 ]
The decision of the Authority follows:

 14 FLRA No. 62
                                            Case Nos. O-NG-549 and 
    The petitions for review in these cases come before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and present issues
 relating to the negotiability of two Union proposals and three
 provisions of a negotiated agreement disapproved by the Agency pursuant
 to section 7114(c) of the Statute.  Upon careful consideration of the
 entire record, including the parties' contentions, the Authority makes
 the following determinations.  /1/
    The Union's petition for review in Case No. O-NG-549 concerns two
 Union proposals alleged to be nonnegotiable in the course of
 negotiations for a new collective bargaining agreement.  The first
 proposal, designated "3.08 Non-Nursing Functions," required management
 to exert good faith efforts "to minimize the performance" of enumerated
 "non-nursing functions." The second disputed proposal, "11.02 Parking
 Facilities," obligated management to provide bargaining unit employees
 with safe, accessible, free parking.
    The parties continued their negotiations and subsequently reached
 accord on a new collective bargaining agreement.  Upon review pursuant
 to section 7114(c)(1) of the Statute, the Agency head rejected three
 provisions including a revised version of article 3.08 now entitled
 "assignments" as being nonnegotiable.  The Union's petition for review
 in Case No. O-NG-603 concerns these three provisions.  In responding to
 the Union's petition for review, the Agency withdrew its allegations
 concerning two of the three provisions designated as articles 14 and
 18.01.  Accordingly, the Authority concludes that the Union's appeal in
 Case No. O-NG-603 as it pertains to articles 14 and 18.01 is moot.  See,
 e.g., Chicago O'Hare Chapter 10, Association of Civilian Technicians and
 Illinois Air National Guard Technicians, O'Hare Air Reserve Forces
 Facility, Illinois, 10 FLRA No. 49 (1982).
    Also included in the final agreement between the parties is a revised
 article 11.02 which does not require management to provide free parking.
  This new provision was approved in the course of the Agency's section
 7114(c)(1) review.  The Union, nevertheless, contends that the prior
 parking proposal, included in its appeal in Case No. O-NG-549, remains
 in dispute and, thus, continues to seek a ruling from the Authority on
 the negotiability of that proposal.  The Union also continues to seek a
 determination from the Authority on the prior article 3.08 as well as
 the more recent one.
    In the interest of expeditious processing of these two cases which
 arose out of the same set of circumstances and which contain common
 issues, the Authority grants the joint Union/Agency motion for
 consolidation of the two appeals.
    The Agency has moved to dismiss the Union's petition for review in
 Case No. O-NG-549 on the basis that the two disputed proposals in that
 case have been superseded by provisions in the negotiated agreement,
 thereby rendering the appeal moot.  The Union tacitly concedes that the
 provisions in the agreement are substitutions for the proposals in Case
 No. O-NG-549, but contends that the dispute in Case No. O-NG-549 is a
 continuing one because the revised articles 3.08 concerning assignments
 and 11.02 concerning parking were included in the agreement "not as a
 compromise, but based on the parties' agreement that (the Union's)
 proposed language would be substituted for the contractual language if
 (the) Authority upheld (the Union's) petition in Case No. O-NG-549.
 However, the Union proffers no documentary support for the existence of
 such an understanding between the parties, nor does the negotiated
 agreement provide for such a contingency.  Moreover, the Agency does not
 advert to such an understanding in its motion to dismiss Case No.
 O-NG-549.  The parties' current negotiated agreement does however,
 provide in article 18.01 for a specific exclusive procedure for
 initiating modification which limits negotiation on revisions to not
 more than once each contract year and requires that notice of intent to
 revise be given sixty days prior to the agreement's anniversary date.
 Negotiation on proposed revisions, under terms of the agreement, may
 only be undertaken upon assent of both parties.
    The threshold issue presented by the Agency's motion to dismiss can
 be resolved on the basis of the record before the Authority by resort to
 the well settled principle that prior or contemporaneous oral agreements
 between contracting parties cannot be used to alter the meaning of
 conflicting provisions mutually agreed upon and reduced to writing.  /2/
 Here, the Union seeks to reopen negotiations on provisions which appear
 in the negotiated agreement without recourse to the procedure provided
 in the agreement for that purpose.  Instead, the Union refers to an
 alleged oral agreement between the parties as the basis for asserting
 that its petition for review in Case No. O-NG-549 remains viable.  In
 the absence of any supporting documentation for the Union's assertion,
 and in light of the negotiated agreement's specific procedure for
 renegotiation which has not been followed herein, the Authority finds
 that the provisions in the agreement superseded the proposals contained
 in the petition for review in Case No. O-NG-549 and that the dispute in
 Case No. O-NG-549 is therefore moot.  See Federal Employees Metal Trades
 Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard,
 7 FLRA 701 (1982), and cases cited therein.
    Consequently, the sole subsisting dispute appropriate for resolution
 under section 7117 of the Statute concerns the negotiability of the
 revised article 3.08, disapproved by the Agency head pursuant to section
 7114(c) and included in Case No. O-NG-603, which provides as follows:
          3.08 Assignments.  It is understood that assignments should be
       reasonably related to the employee's position and qualifications.
       Except as required by special circumstances or, emergencies,
       supervisors shall avoid assigning to employees additional or
       incidental duties which are inappropriate to their positions and
    This provision would prevent management from assigning "additional or
 incidental duties" to bargaining unit employees except in "special
 circumstances"-- a term not further defined-- or in emergency
 situations.  In this respect, Provision 3.08 is to the same effect as
 the portion of Union Proposal 1, precluding the assigning of certain
 duties to specified personnel except in enumerated circumstances, held
 to violate the Agency's right under section 7106(a)(2)(B) of the Statute
 "to assign work" in American Federation of Government Employees,
 AFL-CIO, National Joint Council of Food Inspection Locals and Department
 of Agriculture, Food Safety and Quality Service, Washington, D.C., 9
 FLRA No. 74 (1982).  Based on Food Safety and Quality Service and the
 reasons and case cited therein, Provision 3.08 violates the Agency's
 section 7106(a)(2)(B) right "to assign work" and is outside the duty to
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petitions for review in Case
 Nos. O-NG-549 and O-NG-603 be, and they hereby are, dismissed.  Issued,
 Washington, D.C., May 3, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency's motion that the Union's petition for review in Case
 No. O-NG-549 be dismissed as being untimely filed cannot be sustained.
 The record in this case indicates that the Union filed its appeal with
 the Authority within the time limits prescribed by sections 2424.3 and
 2429.21 of the Authority's Rules and Regulations.
    /2/ See, e.g., Local 461, IUE v. Singer Co., 540 F.Supp. 442, 446-47
 (D.N.J. 1982);  Lewart v. Woodhull Care Center Assocs., 549 F.Supp. 879,
 883 (S.D.N.Y. 1982);  Donovan v. U.S. Postal Serv., 530 F.Supp. 872, 890
 (D.D.C. 1981).