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23:0542(74)NG - NAGE, SEIU and VA Medical Center, Brockton/West Roxbury, MA -- 1986 FLRAdec NG

[ v23 p542 ]
The decision of the Authority follows:

 23 FLRA No. 74
                                            Case No. 0-NG-1142
                         I.  Statement of the Case
    The Union filed a petition for review under 5 U.S.C. Section
 7105(a)(2)(E) challenging the Agency's allegation that the following
 proposal was not negotiable:
          The V.A. shall allow sufficient time in the regular work week
       for the elected Secretary (of the local Union) to perform
       (his/her) duties as required to expedite all matters of a
       Grievable nature.
                       II.  Positions of the Parties
    The Agency argues that the proposal violates 5 U.S.C. Section 7131(b)
 by requiring official time for internal union business.  It also asserts
 that the proposal violates its right to assign work under 5 U.S.C.
 Section 7106(a)(2)(B).  The Union counters that the Agency has not
 demonstrated a "compelling need" as required by 5 C.F.R. Section
 2424.11.  /1/
                      III.  Analysis and Conclusions
    In disagreement with the Agency, we find the proposal negotiable and
 within the duty to bargain under 5 U.S.C. Section 7131(d).
         A.  The Proposal Does Not Concern Internal Union Business
    With certain limitations, an agency and a union must negotiate on the
 amount of official time available for an employee representing that
 union.  5 U.S.C. Section 7131(d).  One of the limitations is the
 prohibition in 5 U.S.C. Section 7131(b) against conducting internal
 union business on official time.  The definition of internal union
 business is narrowly drawn, however, and relates to the institutional
 structure of the union.  American Federation of Government Employees,
 AFL-CIO, Local 2823 and Veterans Administration Regional Office,
 Cleveland, Ohio, 2 FLRA 4 (1979).
    Activities involving labor-management contacts, as well as
 preparation for them, are not internal union business.  For this reason,
 official time for union representatives to engage in contract
 negotiations -- over and above the official time to which they are
 otherwise entitled for that purpose under 5 U.S.C. Section 7131(a) --
 and to prepare for such negotiations is negotiable under 5 U.S.C.
 Section 7131(d).  See American Federation of Government Employees,
 AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461, 462-63
 (1984).  See also American Federation of Government Employees, AFL-CIO,
 Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather
 Air Force Base, California, 3 FLRA 305, 309 (1980).  We did not address
 what constituted "preparation" for labor-management contacts in that
 case, but held this would be more appropriately resolved by the parties
 during negotiations or by an arbitrator in the context of a specific
 case.  We expressly excluded from the definition of "preparations"
 matters which involved the internal business of the union.
    The Union's proposal specifically addresses official time for the
 activities of its Secretary so as to enable her to expedite all
 grievable matters.  Participation in grievance proceedings and
 preparation for them do not relate to the institutional structure of the
 Union.  They are at the heart of the representational activities for
 which official time may be negotiated under 5 U.S.C. Section 7131(d).
    The Agency asserts that the Union Secretary is working and will
 continue to work on internal union business rather than the grievable
 matters proposed.  The Agency points to an unfair labor practice charge
 which was filed by the Union within a few weeks of the negotiability
 petition and which summarizes the Secretary's duties:
          She is also a part time Steward on occasion.  She does filing,
       types grievances and other office duties.
    The Union asserts that the Secretary handles grievances during her
 duty hours resulting in their earlier resolution.
    The Agency's argument anticipates that the Secretary will use
 negotiated official time for internal union business.  An agency cannot
 remove a negotiable item -- one that is consistent with applicable law
 and regulation -- from the bargaining table because it expects it to be
 abused.  Other proceedings -- such as a disciplinary action, an unfair
 labor practice proceeding, or a grievance -- are available to remedy
 such abuse if it occurs.  See, for example, American Federation of
 Government Employees, Local 1778, AFL-CIO, 10 FLRA 346, 350-351 (1982);
 Department of Health and Human Services, Social Security Administration
 and American Federation of Government Employees, Local 3231, 11 FLRA 7
 (1983).  We appreciate the Agency's concern with the difficulty in
 particular situations of distinguishing between the Secretary's
 representational activities and internal union business.  However, as we
 said in Mather, these distinctions are best drawn at the bargaining
 table or through arbitration.
    The purpose of this negotiability proceeding is to decide if the
 Union's proposal is inconsistent with applicable law and regulation and
 therefore outside the duty to bargain.  5 U.S.C. Section 7117(c).  The
 proposal concerns official time for the Union's Secretary to work on
 grievances.  Since participation in and preparation for grievance
 proceedings are not internal union business, bargaining on this proposal
 is not precluded by the prohibition against conducting internal union
 business on official time.
        B.  The Proposal Does Not Interfere With Management's Right
                To Assign Work
    In support of its assertion that the proposal is nonnegotiable, the
 Agency adverts to the proposal's effect on management's right to assign
 work under 5 U.S.C. Section 7106(a)(2)(B).  The Agency here states only
 the obvious.  If the Secretary performs representational activities on
 official time, the Agency is prevented from assigning work to that
 employee during that time.  The Agency's reliance on American Federation
 of Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA
 384 (1980) is misplaced.  In that case, the union proposal addressed the
 time an employee would qualify with weapons on a firing range and would
 practice to maintain qualifications.  The proposal would have required
 the agency to assign certain types of work to certain employees to the
 exclusion of other responsibilities.  We held that the proposal was not
 negotiable under 5 U.S.C. Section 7106(a)(2)(B) because it violated
 management's right to assign work.
    The Marshals Service case is not on point.  While authorizing
 official time for representational purposes necessarily affects
 management's ability to assign work, there is nothing in the Union's
 proposal that would permit the Union's Secretary to use the official
 time authorized by the proposal so as to disregard the needs of the
 Agency to assign work to her at particular times.  That is, the proposal
 would not prevent the Agency from making whatever accommodations may be
 necessary between the scheduling of work assignments and the scheduling
 of official time.  See National Federation of Federal Employees, Local
 541 and Veterans Administration Hospital, Long Beach, California, 12
 FLRA 270, 273-275 (1983).
                                IV.  Order
    The Agency must, upon request (or as otherwise agreed to by the
 parties), bargain concerning the Union's proposal.  /2/
    Issued, Washington, D.C., September 30, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) In its allegation of nonnegotiability the Agency used the term,
 "compelling reason," when conveying its view that the proposal was in
 conflict with 5 U.S.C. Section 7131(b).  The Union misconstrued this as
 a "compelling need" argument and argued that the Agency had not met the
 compelling need criteria in 5 C.F.R. Section 2424.11 to exclude its
 proposal from bargaining.
    We find no indication in the record that by use of the term
 "compelling reason," the Agency intended to advance a compelling need
 argument to support its allegation of nonnegotiability.  For this
 reason, we will not address this issue further.
    (2) In deciding that the proposal is within the duty to bargain, we
 make no judgment on its merits.