25:0366(26)NG - AFGE Local 1631 and VA Medical Center, Chillichothe, OH -- 1987 FLRAdec NG

 25 FLRA No. 26
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFO-CIO, LOCAL 1631
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, CHILLICHOTHE, OHIO
 Agency
 
                                            Case No. 0-NG-1065
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Statute (the Statute) and concerns the negotiability of
 two provisions /1/ of a negotiated agreement which were disapproved by
 the Agency head pursuant to section 7114(c) of the Statute.
 
    II.  Background
 
    The Agency preliminarily asserts that Provision 1 is in conflict with
 Article 9, Section 1 of the Master Agreement between the parties which
 provides as follows:
 
          The parties agree that office space for the union could be
       useful in facilitating effective representation of unit employees.
        The provision of space for a union office is an appropriate
       subject for local negotiations.  The parties further agree that
       provision of office space will be given a high priority and that
       good faith efforts will be made to provide such space.  In the
       event that office space cannot be provided, management will
       bargain with the union over alternative arrangements in lieu of
       office space.
 
    The Agency concedes that Article 9, Section 1 of the Master Agreement
 permits bargaining on union office space.  However, the Agency argues
 that Provision 1 in this case goes beyond the terms of Article 9,
 Section 1 in that it requires the furnishing of space for a union
 office.  The record in this case fails to provide a basis for
 substantiating the Agency's assertion that Article 9, Section 1 of the
 parties' Master Agreement limits negotiations on the Provision 1.
 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), Wurthsmith Air Force Base, Michigan, 14 FLRA 302,
 at 306 n. 6 (1984).
 
    III.  Provision 1
 
          Article VII, Section 1A
 
          The Employer agrees to make an office available for exclusive
       use by the Union.  Present office space will remain in use until
       either, (1) mutually agreeably alternative space can be found, or
       (2) medical center patient care needs require the use of present
       space.  In this event, management will notify the Union 90 days in
       advance.  Other approximately equivalent or mutually agreeably
       space will be made available at least 15 days prior to the time
       the Union is required to vacate the present office.
 
    IV.  Positions of the Parties
 
    On the merits, the Agency's sole contention is that the provision is
 nonnegotiable because it does not conform to the requirements for use of
 Government property set forth in various Comptroller General decisions.
 These decisions state the general principle that the head of a
 Government department or agency has authority to grant a private
 individual or business a revocable license to use Government property,
 subject to termination at any time at the will of the Government,
 provided that such use does not injure the property in question and
 services some purpose useful or beneficial to the Government itself.  44
 Comp. Gen. 824, 825 (June 24, 1965);  33 Comp. Gen. 36 (July 18, 1958);
 36 Comp. Gen. 561 (Feb. 4, 1957).  Specifically, the Agency asserts the
 Provision 1 is inconsistent with the Comptroller General decisions for
 the following reasons:
 
    (1) the 90-day advance notice of a decision to vacate office space is
 contrary to the requirement that use of office space by a private
 individual or business is subject to termination at any time at the will
 of the Government;
 
    (2) the necessity that the Union be provided comparable or mutually
 agreeably space at least 15 days prior to the time the Union is required
 to vacate its present office space is contrary to the requirement that
 there be a determination the use of the space serves some purpose useful
 or beneficial to the Government;  and
 
    (3) the provision fails to comply with the requirement that the use
 of the office space by the Union would not injure the property.
 
    The Union's position is that the provision concerns conditions of
 employment of unit employees, and, thus, is within the duty to bargain.
 
    V.  Analysis and Conclusion
 
    Provision 1 requires the Agency to provide office space for exclusive
 use by the Union.  The space would remain in use until either mutually
 agreeable alternative space is found or patient needs require the use of
 that space.  If either event occurs, the Agency would be required to
 notify the Union 90 days in advance and then provide available mutually
 agreeable office space at least 15 days prior to when the Union would be
 required to vacate their present office space.
 
    The Comptroller General decisions relied upon by the Agency are all
 based on the principle that any attempt to transfer title, ownership or
 control of Government property without compensation would violate
 Article IV Section 3, Clause 2 of the United States Constitution which
 reserves to Congress the power to dispose of Government property.
 However, it is well established that contracts with mandatory notice
 periods before a cancellation can be effected do not violate that
 principle.  See 22 Comp. Gen. 563 (1942).  Thus, we find that the 90 day
 notice period is not contrary to the requirement that use of office
 space by a private individual or business is subject to termination at
 any time at the will of the Government.
 
    Furthermore, the requirement that there be a determination that use
 of the office space serve some purpose useful or beneficial to the
 Government is not contrary to providing the Union with mutually
 agreeably space at least 15 days prior to the time the Union is required
 to vacate its present office space.  A determination as to whether a
 particular use is in the Government's interest is a matter within an
 agency's administrative discretion.  As such, an agency is obligated to
 bargain with respect to a particular matter affecting conditions of
 employment, so long as negotiation is not precluded on other grounds.
 See American Federation of Government Employees, AFL-CIO, National
 Council of Social Security Field Locals and Department of Health and
 Human Services, Social Security Administration, 24 FLRA No. 81 (1986)
 (Proposals 2-12).  In addition, it is well established that the use of
 office space by a union functioning as the exclusive representative of
 bargaining unit employees is a matter affecting conditions of
 employment.  See American Federation of Government Employees, Local 1626
 and General Services Administration, Region 5, 5 FLRC 615 (1977)
 (Proposal I requiring that office space be assigned to the union on a
 continuing basis found negotiable).
 
    Finally, there is no indication in the disputed provision that use of
 the office space by the Union would injure the property.  In this
 connection, the Authority notes instead that the Statute recognizes the
 benefit of providing upon request, customary and routine services and
 facilities to a Union if the services and facilities are also furnished
 on an impartial basis to other labor organizations having equivalent
 status.  /2/ In fact, under the Master Agreement,the parties "agree that
 office space for the union could be useful in facilitating effective
 representation of unit employees."
 
    Contrary to the Agency's additional contention, the provision does
 not preclude it from considering conditions at the time the decision to
 provide office space is made.  Further, the provision permits office
 space adjustments to be based on patient care needs.  Therefore, we
 conclude that Provision 1 is within the duty to bargain.
 
    VI.  Provision 2
 
          Article VII, Section 10
 
          Unscheduled overtime is one means for providing necessary
       coverage for unforeseen circumstances.  Overtime, whether
       scheduled or unscheduled, will be fairly and equitably assigned,
       first, to qualified volunteers, if available and/or time permits;
       or second, in the event no volunteers are available, fairly and
       equitably assigned to those available with the requisite skills,
       except that overtime should not be required of employees when it
       will impair their health or efficiency or cause extreme hardship
       to them.  (Only the underlined portion of the proposal is in
       dispute.)
 
    VII.  Positions of the Parties
 
    The Agency contends that Provision 2 is inconsistent with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  It argues that the provision requires the Agency to assign
 overtime work to volunteers.  In the event that there are no volunteers
 available, the provision places additional restrictions on the Agency's
 right to assign work.  Furthermore, according to the Agency, the
 disputed provision refers to any type of overtime assignment of work
 without any distinction as to whether it is an assignment to perform the
 type of work normally within the scope of an employee's duties or
 outside the employee's normal job responsibilities.
 
    The Union argues that the provision does not violate management's
 right to assign work but, instead, is a negotiable procedure under
 section 7106(b)(2) of the Statute.
 
    VIII.  Analysis and Conclusion
 
    Provision 2 is to the same as effect as Provision 2 in National
 Federation of Federal Employees, Local 1622 and U.S. Commissary, Fort
 Meade, Maryland, 16 FLRA 998 (1984).  Provision 2 in that case required
 that the employer would, upon request, relieve an employee from an
 overtime assignment if there was another qualified employee available
 and willing to work.  The Authority held that the provision did not
 interfere with management's rights pursuant to section 7106(a)(2)(A) and
 (B) of the Statute to assign employees and work, but instead constituted
 a negotiable procedure within the meaning of section 7106(b)(2).
 
    Contrary to the Agency's contention, there is nothing in the record
 which indicates that this provision would require management to assign
 work outside of an employee's normal job responsibilities.  Instead, the
 clear language of the disputed provision refers to "qualified"
 volunteers and requires other employees to have the requisite skills for
 the job.  If, in the Agency's judgment, a volunteer is not qualified and
 capable of performing the work, management would retain the right to
 assign overtime work to another employee which it determined had the
 requisite skills.  Consequently, based on U.S. Commissary, Fort Meade,
 Maryland and the cases cited in that decision, we conclude that
 Provision 2 is a negotiable procedure under section 7106(b)(2).
 
    We note that the Agency did not specifically address the last clause
 of the portion of Provision 2 in dispute which provides that "except
 that overtime should not be required of employees when it will impair
 their health or effeciency or cause extreme hardship to them." This
 clause, expressly provides that overtime should not be assigned in the
 circumstances described and does not actually prevent the Agency from
 assigning overtime in those circumstances.  Thus, since there is nothing
 in the express language of Provision 2 which indicates that management
 would be prevented from assigning overtime in the circumstances
 described and since the Agency has made no claim concerning this clause,
 we will interpret this portion of Provision 2 as being consistent with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.
 
    IX.  Order
 
    Accordingly, the Agency must rescind its disapproval of the disputed
 provisions.  /3/
 
    Issued, Washington, D.C., January 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its Statement of Position, the Agency withdrew its allegation
 of nonnegotiability on an additional provision.  Accordingly, as there
 is no longer an issue whether that provision is within the duty to
 bargain it will not be considered further.
 
    (2) Section 7116(a)(3) provides as follows:
 
          Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (3) to sponsor, control, or otherwise assist any labor
       organization, other than to furnish, upon request, customary and
       routine services and facilities if the services and facilities are
       also furnished on an impartial basis to other labor organizations
       having equivalent status(.)
 
    (3) In finding these provision within the duty to bargain, we make no
 judgment as to their merits.