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 inspe