[ v25 p366 ]
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 (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.