[ v22 p136 ]
The decision of the Authority follows:
22 FLRA No. 13 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2059 Union and U.S. DEPARTMENT OF JUSTICE U.S. ATTORNEY'S OFFICE SOUTHERN DISTRICT OF NEW YORK NEW YORK, NEW YORK Agency Case No. 0-NG-1125 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 two provisions of a negotiated agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. II. Provisions The dispute concerns the underlined portion of provision 1 and all of provision 2: Provision 1 (Article XXX, Section 2) Health and Safety Committee: The Employer and the Union shall each designate a minimum of two (2) members to serve on the Safety and Health Committee. The Safety and Health Committee shall perform the following functions: a. Investigate, report and recommend corrective action for unsafe working conditions referred to the committee. b. Meet quarterly. Provision 2 (Article III, Section 13) Emergency: A situation which imposes sudden, immediate requirements for the Employer as a result of natural phenomena or other circumstances beyond the Employer's reasonable control or ability to anticipate. A. Positions of the Parties 1. Health and Safety Committee The Agency argues that by requiring it to (1) appoint two members to the Committee, and (2) assign the investigation of unsafe working conditions to the Committee, the provision is inconsistent with its reserved management rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees and assign work. The Agency also contends that the Committee could hamper investigations by others, including outside experts, so as to interfere with its section 7106(a)(1) right to determine its internal security practices. The Union asserts that the provision neither requires the appointment of particular management employees to the Committee nor precludes the Agency from assigning investigatory responsibilities to persons who are not on the Committee. Thus, the Union maintains that the provision is not inconsistent with the Agency's rights to assign employees and work. The Union did not file a reply brief in this case. Accordingly, the Union did not address the Agency's argument, which was not contained in its written assertion of nonnegotiability, concerning internal security practices. 2. Definition of Emergency The Agency contends that by defining "emergency," the provision limits and is, therefore, inconsistent with its reserved right under section 7106(a)(2)(D) of the Statute to take "whatever actions may be necessary to carry out the agency mission during emergencies." Since the term "emergency" is not defined in the Statute and has not been defined by the FLRA through case decisions, the Agency maintains that it is free to act in what it perceives to be emergencies, subject to FLRA review through the unfair labor practice procedures. The Union's position is that the parties may agree to a definition of a word or phrase as long as the word or phrase is not explicitly defined in the Statute or case law. It asserts that the provision both permits the Agency to exercise its rights during and emergency and prevents the Agency from "abusing the concept of an 'emergency'" in order to circumvent collective bargaining obligations. Union Petition for Review at 2. B. Analysis 1. Health and Safety Committee Provision 1 provides that the Committee, to which the Agency and the Union each appoint two members, shall have as one of its functions the investigation of unsafe working conditions. The Agency argues that the provision is inconsistent with its rights to assign employees, assign work, and determine its internal security practices. The Authority has consistently held that the right to assign employees means the right to assign them to positions in the agency. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981). The designation of an employee to serve on the Health and Safety Committee does not constitute an assignment to a position and is not, therefore, inconsistent with the Agency's right to assign employees. See 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). As for the Agency's right to assign work, the participation of Union representatives on the Committee does not concern official, prescribed duties. Accordingly, it does not involve the assignment of "work" within the meaning of section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983). Further, the provision neither requires the Agency to appoint particular individuals to the Committee nor prevents it from changing its designations. The Agency's contentions concerning its right to select the individuals to represent its interests, therefore, lack merit, and its citation of the Authority's decision in National Federation of Federal Employees, Local 78 and Veterans Administration Regional Office, Indianapolis, Indiana, 9 FLRA 819 (1982), as support for its argument is inapposite. In the latter case, the proposal in question prescribed specific duties to particular employees. Such is not the case here. Finally, as for the Agency's contention that the provision interferes with its right to determine its internal security practices, nothing in the provision would prevent the Agency from determining that an unsafe working condition or accident scene should be examined by personnel of its choice prior to an investigation by the Committee. In fact, the Union concedes that nothing in the provision grants the Committee "sole province" over the investigation of unsafe working conditions. Union Petition for Review at 2. They Agency has not established how the provision would interfere with its discretion and judgment concerning its investigatory responsibilities. Compare National Treasury Employees Union and NTEU Chapter 61 and Department of the Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA 304 (1981), in which the Authority determined that a proposal to delay investigative searches was not inconsistent with management's right to determine its internal security practices. The Authority has issued decisions concerning the negotiability of proposals for both "certified" and "uncertified" health and safety committees. The Agency does not argue and it does not appear from the record that the Committee is intended to be "certified" by the Secretary of Labor under E.O. 12196, thereby enabling the Agency among other things to avoid unannounced inspections by the Occupational Safety and Health Administration, as was the safety and health committee the establishment of which was found to be nonnegotiable in National Treasury Employees Union and Department of the Treasury, Bureau of Government Financial Operations, 21 FLRA No. 83 (May 8, 1986). Thus, the law and regulations applicable to the discussion of "certified" committees in that case are not pertinent here. As for "uncertified" committees, the Union makes clear that the Committee's investigative function is not intended to preclude the Agency from assigning investigative work to others, including officials from outside the Agency. Union Petition for Review at 2. The Union states that the Committee is intended to provide a "constructive forum" in which to address health and safety issues. Union Petition for Review at 1. Accordingly, the Committee's functions do not replace or conflict with the Agency's responsibilities, and the Committee is not intended to bypass management in the health and safety area. As such, the provision differs from the proposal for an "uncertified" committee found to be nonnegotiable in American Federation of Government Employees, AFL-CIO, Local 2786 and Defense Mapping Agency, 20 FLRA No. 26 (September 20, 1985) (Provision 3). Since the provision concerns a Committee which constitutes a forum for the expression of concerns over health and safety matters and the development of recommendations concerning them rather than a forum enabling the Union to interject itself into the decisionmaking process through which the Agency exercises its reserved rights under the Statute, it is consistent with the proposal for an "uncertified" committee found to be negotiable in American Federation of Government Employees, AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983) (Provision 2). Further, unlike the proposal in American Federation of Government Employees, Local 644 and U.S. Department of Labor, Mine Safety and Health Administration, 21 FLRA No. 122 (May 29, 1986) (Proposal 3), the wording of Provision 1 and the parties' statements clearly set forth the nature and functions of the Committee. In Mine Safety and Health Administration, the proposal providing union participation on a safety and health inspection team and the parties' statements were not sufficiently specific as to the functions of the team or the nature of the union's participation to enable the Authority to decide whether the proposal was negotiable. Moreover, the provision is also consistent with Authority decisions that proposals for joint labor-management committees concerned with other matters are negotiable. See, for example, U.S. Army Adjutant General Publication Center, where the Authority found negotiable a proposal for a joint labor-management committee to develop the agency's training program, and noted that the committee would only provide the union with an opportunity to express its views rather than mandating joint determination of the substantive aspects of the program; and American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 6), where the Authority found negotiable a proposal to create a joint labor-management committee with the limited power to recommend changes in the performance appraisal system, and determined that the agency retained its discretion to accept or reject any of the committee's recommendations. 2. Definition of Emergency Provision 2 provides a definition for the term "emergency," a term which is used in three portions of the parties' collective bargaining agreement: (1) Article IV, Section 1 b. 4, concerning management's rights; (2) Article XXV, Section 2, concerning notice periods prior to changes in tours of duty; and (3) Article XXVI, Section 1 f, concerning postings of overtime schedules. The Agency argues that the provision limits its right under section 7106(a)(2)(D) of the Statute to "take whatever actions may be necessary to carry out the agency mission during emergencies." The Union disagrees, stating that the provision would "in no way limit management's freedom of action in the event of an emergency." Union Petition for Review at 3. The Authority agrees with the Agency. Provision 2 would limit the exercise of management's section 7106(A)(2)(D) right to those situations falling within the definition of "emergency." As such, the provision is similar to Provision 1 in Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346 (1981), reversed as to other matters sub nom. Adjutant General, Department of Military Affairs, Pennsylvania v. FLRA, 685 F.2d 93 (1982), which the Authority found nonnegotiable because it would have limited management's right to act during emergencies to situations where the emergency was verified and declared by the activity supervisor. By precluding the Agency from independently assessing whether an emergency exists, Provision 2 in this case also limits management's right to act in emergencies and, as a result, in nonnegotiable. C. Conclusions For the reasons stated above, Union Provision 1 is not inconsistent with management's rights under section 7106 of the Statute to assign employees, assign work, and determine its internal security practices, as alleged by the Agency. Provision 1, therefore, is within the duty to bargain. /*/ Union Provision 2 is inconsistent with management's right to take actions which may be necessary to carry out the Agency's mission during emergencies. Accordinly, Union Provision 2 is outside the duty to bargain. III. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall rescind its disapproval of Union Provision 1 which was bargained on and agreed to by the parties at the local level; IT IS FURTHER ORDERED that the petition for review as to Union Provision 2 be, and it hereby is, dismissed. Issued, Washington, D.C., June 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member --------------- FOOTNOTES$ --------------- (*) In deciding that the provision is within the duty to bargain, the Authority makes no judgment as to its merits.