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



[ v25 p366 ]
25:0366(26)NG
The decision of the Authority follows:


 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