22:0136(13)NG - NFFE Local 2059 and DOJ, Attorney's Office, Southern District of NY, NY, NY -- 1986 FLRAdec NG

 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.