[ v24 p147 ]
The decision of the Authority follows:
24 FLRA No. 21 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO Union and VETERANS ADMINISTRATION MEDICAL CENTER, GRAND JUNCTION, COLORADO Agency Case No. 0-NG-1211 DECISION AND ORDERS ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of four Union proposals. II. Union Proposal 1 ARTICLE 8 Section 1. Matters appropriate for mid-contract negotiations shall include those negotiable issues proposed by either party which are either newly formulated, or changes to established personnel policies and practices during the term of this agreement, which affect the working conditions of unit employees. Section 3(d). If the proposal is made by the Union, the time limits and procedures described in section 3(b) will be utilized, with the roles reversed. A. Positions of the Parties The Agency contends that Union Proposal 1 would require it to bargain over Union-initiated proposals during the term of the agreement. The Agency argues that it has no duty to bargain over such proposals absent management-initiated changes in conditions of employment, citing the Authority's decision in Internal Revenue Service, 17 FLRA 731 (1985), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985). The Agency also claims that the proposal conflicts with the parties' master agreement which limits mid-term bargaining to proposals concerning management-initiated changes. The Union contends that the Internal Revenue Service case does not prohibit the parties from agreeing to bargain on Union-initiated mid-term proposals. The Union further argues that the section of the master agreement cited by the Agency does not apply to negotiations at the local level. B. Analysis 1. Union-initiated mid-term proposals In Internal Revenue Service, cited by the Agency, the Authority held that an agency has no general obligation to bargain over union-initiated proposals during the term of a collective bargaining agreement. However, the Authority also held that an agency may be obligated to bargain over such a union-initiated proposal where (1) management seeks to alter an established condition of employment in a manner which is not precluded by the agreement; (2) the proposal is submitted consistent with a reopener clause in the parties' agreement; or (3) the proposal is made under section 7106(b)(2) and (3) of the Statute in response to the exercise of a management right under section 7106(a). While an agency has no duty to bargain over mid-term proposals initiated by a union, there is nothing in the Internal Revenue Service case that would prohibit an agency from entering into a reopener clause like Union Proposal 1 which requires it to do so. 2. Interpretation of master agreement The record in this case fails to provide a basis for substantiating the Agency's assertion that provisions of the parties' master agreement limit negotiations on this proposal. Further, to the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). C. Conclusion For the reasons set forth above, Union Proposal 1 is within the duty to bargain. III. Union Proposal 2 ARTICLE 10 Section 4. A steward or officer may request permission from his supervisor to report on duty one hour early or late, and be relieved from duty one hour early or late, whichever may be required, to permit the steward to assist an employee who is working a different shift, in the processing of a grievance during both the steward's and employee's on-duty time. This request will be granted unless the change would result in the tour of duty extending over two days. A. Positions of the Parties The Agency contends that the proposal would interfere with its right under section 7106(a)(2)(B) to assign work by prohibiting it from assigning duties to the union officers or stewards during the first or last hour of a shift so that the employee could process grievances. The Agency also argues that Proposal 2 would have the effect of granting compensatory time to an employee in circumstances not authorized under 5 U.S.C. Section 5543. The Agency further contends that the proposal is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation. It claims that the proposed adjustment would require the Agency to schedule employees on the basis of union representational activities rather than the Agency's mission as required by the regulation. The Union contends that its proposal does not interfere with the Agency's right to assign work. The Union claims that Proposal 2 simply facilitates the use of official time by the Union and employees by providing for an adjustment in a union representative's shift to overlap the shift of an employee. Such an adjustment, the union explains, would permit the union representative and the employee to meet while both were in a duty status, using official time that the Agency had otherwise agreed to grant to the two employees. As to the separate matter of official time, the Union points out that employees are only permitted to request and management is only required to consider such requests. Management may decide that either the employee or the union representatives cannot be spared for particular times requested to conduct representational activities and thus may deny the request. The Union also claims that the proposal would enhance an employee's ability to have the union representative of his or her choice. Finally, the Union contends that Proposal 2 would not require the grant of compensatory time since it would not affect the number of hours worked by an employee during the week. B. Analysis and Conclusions As the Authority has previously indicated, the parties may negotiate procedures and practices which do not negate an agency's rights but which would enable a union to implement its statutory rights and duties with respect to the representation of employees. See American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1014-15 (1982) (Union Proposal 7). In National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979), the Authority found that a proposal that would adjust the starting and quitting times of employees did not violate the agency's rights under section 7106(b)(1) and was within the duty to bargain. As explained by the Union, Proposal 2 is concerned simply with adjusting the starting and quitting times of union officials when those officials are processing grievances involving employees on shifts other than their own. Thus, the proposal would facilitate the carrying out of representational activities as an adjunct to whatever separate agreements directly concerned with use of official time that the parties are able to reach in particular circumstances. As the Union has indicated, the Agency may take into account its work assignment requirements in arriving at those separate agreements and in acting on individual requests pursuant to those agreements. As interpreted, Proposal 2 is to the same effect as Proposal 1 in National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986), which we found to be within the duty to bargain. For the reasons stated more fully in that deicsion, Proposal 2 is negotiable in this case. Additionally, like the proposal in VA Medical Center, Topeka, we find no basis upon which to conclude that the Union's proposal here either concerns a grant of compensatory time or requires the Agency to schedule employees in a manner other than that required by 5 C.F.R. Section 610.121. IV. Union Proposal 3 ARTICLE 11 Section 2. When an employee changes work shifts, he will not be required to report for duty for two shift periods. The Dietetics Service will be exempted from this requirement. Section 9. Employees will not be required to work more than two tours of duty in one workweek except to allow for a minimum of two shift periods between the end of one tour and the beginning of the next. A. Positions of the Parties The Agency contends that Union Proposal 3 is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation which requires it to schedule employees consistent with actual work requirements. The Agency argues that the proposal would require it to provide employees with two shift intervals between each shift worked by an employee regardless of actual work requirements. The Union contends that the proposal does not conflict with the regulation cited by the Agency. It claims that Proposal 3 does not prevent the Agency from acting at all to schedule employees in accordance with mission requirements. B. Analysis and Conclusion The Authority finds that Union Proposal 3 is outside the duty to bargain for a reason other than that raised by the Agency. Union Proposal 3 is essentially the same as Union Proposal 2 in VA Medical Center, Topeka, which we found to violate management's right to assign work. The proposal in that case would have prohibited the agency from scheduling an employee to work on a shift if that employee had worked during the previous eleven hours, or to schedule an employee for two different tours of duty in the same week, regardless of the agency's actual work requirements and whether that employee's particular skills were needed on a particular shift. We found that the proposal would place a condition upon the agency's exercise of its right to assign work and could prevent the Agency from determining what duties were to be performed on what shift in violation of section 7106(a)(2)(B). Similarly, Union Proposal 3 here would prohibit the Agency from scheduling an employee to work on a shift where the employee had worked on one of the two preceding shifts, or to work two tours of duty in the same week, regardless of the Agency's work requirements. Accordingly, for the reasons set forth more fully in VA Medical Center, Topeka, we conclude that Union Proposal 3 here violates management's right to assign work and is outside the duty to bargain. V. Union Proposal 4 ARTICLE 11 Section 6. Except in cases that adversely affect patient care, employees' days off will be consecutive. Employees' days off will not be arbitrarily split. An employees' written request for split days off will be considered. A. Positions of the Parties The Agency contends that Union Proposal 4 is inconsistent with 5 C.F.R. Section 610.121, a Government-wide regulation which requires it to schedule employees consistent with actual work requirements. It argues that Union Proposal 4 would require it to schedule employees for consecutive days off regardless of the Agency's actual work requirements. The Union disputes the Agency's contentions. B. Analysis and Conclusion The Authority finds that Union Proposal 4 is to the same effect as Union Proposal 3 which we held to be within the duty to bargain in the VA Medical Center, Topeka case. We found that the proposal in that case, which similarly would have provided employees with consecutive days off unless patient care would be adversely affected, was not inconsistent with management's rights and would not prevent the agency from scheduling employees consistent with actual work requirements as provided in 5 C.F.R. Section 610.121. Union Proposal 4 here expressly states that the Agency need not provide employees with consecutive days off where patient care would be adversely affected. Accordingly, for the reasons set forth more fully in VA Medical Center, Topeka, we conclude that Union Proposal 4 is within the duty to bargain. VI. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Union Proposals 1, 2 and 4. /*/ IT IS FURTHER ORDERED that the petition for review as to Union Proposal 3 be, and it hereby is, dismissed. Issued, Washington, D.C., November 21, 1986 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.