U.S. Federal Labor Relations Authority

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21:0652(83)NG - NTEU and Dept. of the Treasury, Bureau of Government Financial Operations -- 1986 FLRAdec NG

[ v21 p652 ]
The decision of the Authority follows:

 21 FLRA No. 83
                                            Case No. 0-NG-755
                         I.  Statement of the Case
    This case is 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 one provision of a negotiated
 agreement disapproved by the Agency head pursuant to section 7114(c) of
 the Statute.  /1/
                           II.  Procedural Issue
    The Agency moved for dismissal of the Union's petition for review
 because the petition failed to include a precise statement of the
 provision's meaning as required by section 2424.4(a)(2) of the
 Authority's Rules and Regulations.  While the original petition did not
 contain a statement of meaning, the Union subsequently amended its
 petition to include the requisite statement, thus curing the defect in
 accordance with established Authority practice.  See, e.g., American
 Federation of Government Employees, Local 2578, AFL-CIO and General
 Services Administration, National Archives and Records Service, 12 FLRA
 545 (1983).
                              III.  Provision
    Section 2
          A.  Each Center will establish an occupational safety and
       health team consisting of two (2) members appointed by the Union.
          1.  Employees on the committee will receive appropriate
       training as available.
          2.  Employees have the right to report health and safety
       complaints to the health and safety team, who will investigate the
       complaints and submit reports.
          3.  The health and safety team will conduct at least quarterly
       inspections (or more frequently if in accordance with a past
       practice) and submit reports.
          4.  Time spent on team activities will be official time.
                       A.  Positions of the Parties
    The Agency argues, that by giving the Union the right to appoint two
 members to the proposed occupational safety and health team, the
 provision is inconsistent with its reserved management rights under
 section 7106(a)(2)(A) and (B) of the Statute to assign employees, to
 assign work and to determine the personnel by which Agency operations
 shall be conducted.
    According to the Union, the language of the disputed provision
 "requires the agency to select the option of a joint health and safety
 committee rather than unannounced OSHA (Occupational Safety and Health
 Administration) inspections as that option exists in E.O. 12196 and 29
 CFR Part 1960." Union Amended Petition for Review at 1.
    The Union advances three arguments to support its position that the
 disputed provision is negotiable.  First, since the proposed team is not
 a product of law or regulation, but, rather, is to be created by the
 collective bargaining agreement, serving on that team does not
 constitute the work of the Agency.  Because the reserved management
 right to assign work extends only to the work of the Agency, the Union's
 authority, pursuant to the provision, to designate two team members does
 not contravene a management right.  Second, the Union notes that the
 Agency is free to appoint as many members to the team as it wishes under
 the terms of the provision.  Finally, the Union argues that the
 provision constitutes a procedure which assures fairness and equity in
 assigning members to the safety and health committee.
                               B.  Analysis
            1.  Establishment of a Certified Safety and Health
    In order to achieve the Union's stated objective of avoiding
 unannounced OSHA inspections the safety and health committee sought to
 be established must be "certified" by the Secretary of Labor under law
 and regulation.  See, section 1-301, Executive Order 12196 and 29 C.F.R.
 Section 1960.36(b).  Further, in order to obtain certification by the
 Secretary of Labor, a network of committees must be established at both
 the national level of the agency and, for agencies with field or
 regional offices, at other appropriate levels within the agency.
 Section 1-301, E.O. 12196, 29 C.F.R. Section 1960.37(a).  The Union here
 represents Disbursing Center (Field) employees in the Bureau of
 Government Financial Operations (BGFO).  The BGFO is a bureau of the
 Department of the Treasury.  The record in this case, however, indicates
 that the Agency head, the Secretary of the Treasury, has not
 established, and is not attempting to establish, the network of
 committees required for certification under the executive order and
 regulations.  Thus it is clear that the Union is not merely attempting
 to negotiate over membership on a joint labor-management safety
 committee concerned with matters of safety and health within the
 bargaining unit.  Rather, in view of the Union's professed objective to
 avoid unannounced OSHA inspections, the provision seeks to bind the
 Agency to a course of action requiring the forming of similar committees
 throughout the Agency.
    Although the parties focused their arguments on whether the Union may
 negotiate over membership on the safety and health committee, the issue
 to be resolved initially is whether bargaining over the establishment of
 a certified safety and health committee is itself authorized by
 governing law, the implementing executive order and relevant
 Government-wide regulations.
    The legislation creating safety and health programs for Federal
 agencies prescribes specific roles for agency heads and employee
 representatives in the establishment of safety and health committees.
 29 U.S.C. Section 668(a) charges agency heads with responsibility for
 establishing and maintaining "an effective and comprehensive
 occupational safety and health program" and requires agency heads to
 engage in "consultation" with representatives of their employees.  In
 the legislative history the statutory objective is described as follows:
          The above requirements are intended to establish clear
       responsibility for the Federal Government's internal safety and
       health efforts, and provide the Secretary (of Labor) with an
       active role in coordinating the multiplicity of programs devised
       by various agencies.  /2/ (Footnote added.)
    The relevant executive order, issued pursuant to statutory
 authorization, implements the expressed intent of the law by identifying
 agency heads as having responsibility, inter alia, for providing their
 employees with safe workplaces and for operating occupational safety and
 health programs in accordance with the executive order and with
 regulations promulgated by the Secretary of Labor.  E.O. 12196, section
 1-201.  This executive order specifically defines the role of employee
 unions.  In section 1-201(i), agency heads are required to assure that
 employee representatives accompany safety and health inspectors when
 inspecting agency workplaces.  The executive order authorizes, in
 section 1-301, exclusive representatives to appoint members to certified
 committees only at levels where they hold exclusive recognition, should
 the decision be made by the agency head to establish certified
 committees.  The order also provides for circumstances where there is no
 certified bargaining representative.  In such situations, committees
 will be comprised of management representatives "and an equal number of
 nonmanagement employees or their representatives." However, the Union
 provides no evidence to indicate that Congress, the President or the
 Secretary of Labor intended to give unions a greater role in the Federal
 safety and health programs than that expressly prescribed for them in
 the law, the executive order or in existing regulations.  That is, in
 light of the specific responsibilities assigned, it does not appear that
 unions are authorized to negotiate over the establishment of certified
 safety and health committees.  See, for example, U.S. Department of
 Labor, Labor-Management Services Administration, Cleveland, Ohio and
 National Union of Compliance Officers, 13 FLRA 677 (1984) wherein it was
 held that the available legislative and regulatory evidence did not
 support the position that the termination of probationary employees was
 includable within the scope of negotiated grievance procedures.
    Finally, this view is not altered by the fact that the Authority has
 found proposals seeking to establish joint labor-management committees
 to serve as vehicles for exchanging view on matters affecting conditions
 of employment within a bargaining unit to be negotiable.  See, e.g.,
 American Federation of Government Employees, AFL-CIO, Local 2761 and
 U.S. Department of the Army, U.S. Army Adjutant General Publication
 Center, St. Louis, Missouri, 14 FLRA 438 (1984).  The committee sought
 to be created here, however, would have more than an advisory role, in
 that it would have the various powers and responsibilities authorized by
 the statutory and regulatory framework.  Thus, the provision in this
 case is readily distinguishable from the provision before the Authority
 in American Federation of Government Employees, AFL-CIO, Council of
 Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286
 (1983) which sought only the establishment of an uncertified safety and
 health committee and which was found to be within the duty to bargain.
            2.  Union Membership on Certified Safety and Health
    Assuming that the Agency head in this case were to exercise his
 exclusive discretion to establish certified safety and health
 committees, as that option exists in the cited executive order and
 related regulations, then Union representation on such committees would
 be governed by other provisions of the Executive Order.  Specifically,
 section 1-301 of E.O. 12196 provides:  "Where there are exclusive
 bargaining representatives for employees at the national or other level
 in an agency, such representatives shall select the appropriate
 nonmanagement members of the (occupational safety and health)
 committee." Thus, the Union's right to select members for the certified
 committee would arise directly from the governing executive order and
 consequently would not be inconsistent with rights reserved to
 management by the Statute.
                              C.  Conclusion
    For the reasons stated above, bargaining on the disputed provision is
 inconsistent with law and applicable Government-wide regulations and,
 consequently, is outside the duty to bargain pursuant to section
 7117(a)(1) of the Statute.  However, should the Agency head decide in
 the future to establish occupational safety and health committees in
 accordance with the governing statutory and regulatory prescriptions,
 the Union could pursuant to the executive order designate the
 individuals who will represent the Union on such committees.
                                III.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., May 8, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) The Union withdrew its request for negotiability determinations
 on two additional provisions, one concerning military leave and the
 other covering automatic performance ratings.  Hence those provisions
 are not considered here.
    (2) S. REP. NO. 1282, 91st Cong., 2d Sess., reprinted in 1970 U.S.
 CODE CONG. & AD. NEWS 5177, 5196.