27:0052(13)NG - AFGE Local 1738, and VA Medical Center, Salisbury, NC -- 1987 FLRAdec NG
[ v27 p52 ]
27:0052(13)NG
The decision of the Authority follows:
27 FLRA No. 13
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1738
Union
and
VETERANS ADMINISTRATION
MEDICAL CENTER, SALISBURY,
NORTH CAROLINA
Agency
Case No. 0-NG-1070
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of eight proposals. In its response to
this negotiability appeal the Agency withdrew its allegation of
nonnegotiability as to one additional proposal. Accordingly, it will
not be considered. We also note that the Union, in its reply brief,
claimed that the disputed matters were contained in a supplemental
agreement and were disapproved by the Agency head. However, the parties
otherwise consistently refer to the disputed matters as proposals and we
find nothing in the record to support the Union's claim. Thus, we will
treat the disputed matters in this decision as proposals and not
provisions which were disapproved under section 7114(c) of the Statute.
II. Proposal 1
The president of the union will be advised should the agency
decide to establish an investigatory or fact-finding committee
affecting bargaining unit employees. The employer agrees to
consider qualified employees nominated by the union for
appointment to the committee.
A. Positions of the Parties
The Agency alleges that Proposal 1 does not concern conditions of
employment of bargaining unit employees. The Agency also alleges that
the proposal is inconsistent with management's rights under section
7106(a)(1) of the Statute to determine the mission, organization, and
internal security practices of the Agency and with the right to
discipline under section 7106(a)(2)(A) because the proposal requires
Union participation in the Agency's substantive decision-making process.
Furthermore, the Agency contends that the proposal is inconsistent with
38 U.S.C. Section 3305 and its implementing regulation, 38 CFR Section
17.500-17.540 which concern the VA's Medical Quality Assurance Program.
/1/
The Union argues that Proposal 1 merely requires that qualified
employees recommended by the Union be considered for appointment to
investigative or fact-finding committees established by management.
B. Analysis and Conclusion
Contrary to the Agency's position, since this proposal expressly
applies only to matters affecting bargaining unit employees it does
concern conditions of employment of such employees.
However, it is by now well established that proposals seeking union
participation in the deliberative process leading to the exercise of
rights reserved to management by section 7106 of the Statute are
nonnegotiable. See National Federation of Federal Employees, Local 1431
and Veterans Administration Medical Center, East Orange, New Jersey, 9
FLRA 998 (1982) and the cases cited there. In VA Medical Center, East
Orange, the Authority observed at 9 FLRA 999 that "when management
establishes formal organizational structures to undertake such
deliberations as an integral part of its substantive decision-making
process, a proposal which would require union participation would have
the effect of directly interfering with management's statutory right to
make the decisions involved."
The Agency argues without contravention that investigatory or
fact-finding committees affecting bargaining unit employees consider
such matters, among others, as the organization and staffing of the
Medical Center, the assignment of work to employees, and the equipment
and supplies utilized in the Medical Center, all matters which involve
the exercise of management's rights under section 7106 of the Statute.
/2/
Nevertheless, we find that Proposal 1 is negotiable because it only
requires the Agency to consider the appointment of Union nominated
individuals to such committees. As such, it does not require Union
participation in management's substantive decision-making process and
would not involve the Union in the Agency's deliberative process. Thus,
Proposal 1 would not interfere with any of the management rights relied
upon by the Agency. See International Federation of Professional and
Technical Engineers, Local 4 and American Federation of Government
Employees, Local 2024, AFL-CIO and Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 14 FLRA 52 (1984). In
addition, since the proposal does not require Union participation on any
management committee it would not require the disclosure of confidential
information to the Union in violation of law.
III. Proposal 5
When an agency investigation of Bargaining Unit employees is
concluded and the results of the investigation could impact upon
Bargaining Unit employees, the union will be made aware of the
conclusion and the results of the investigation immediately after
they are known.
A. Positions of the Parties
The Agency contends that Proposal 5 does not concern conditions of
employment under section 7103(a)(14) of the Statute because not all
investigations involve matters pertaining to conditions of employment.
The Agency refers to investigations concerning employee misconduct, law
enforcement, indebtedness to the V.A., damage to Government property,
and V.A. benefits, among others as examples. It also contends that
Proposal 5 is inconsistent with law, 38 U.S.C. Section 3305, and with
applicable Government-wide regulations, 38 CFR Section 17.500.-17.540.
The Agency further argues that the proposal interferes with its right to
determine its internal security practices under section 7106(a)(1) of
the Statute.
The Union claims that Proposal 5 does not involve investigation of
unlawful or illegal activities of bargaining unit employees. Further,
according to the Union, the proposal does not require disclosure of
confidential information to the Union but merely that the Union be
generally informed of the results of any investigation, only to the
extent consistent with law or regulations.
B. Analysis and Conclusion
Proposal 5 requires that the results of any investigations which
could have an impact on bargaining unit employees be released
immediately to the Union upon completion of the investigation. There is
nothing in the express language of Proposal 5 which supports the Union's
claim that it was not intended to apply to investigations of employee
misconduct, unlawful activities or preclude the disclosure of
confidential information. Rather, the language of the proposal includes
no limitations as to the type of investigation results the Union would
be immediately informed of as long as the results affected bargaining
unit employees.
This proposal is to the same effect as section (b) of the proposal
found nonnegotiable in National Federation of Federal Employees, Local
1300 and General Services Administration, 18 FLRA 789, 795-97 (1985).
That section prescribed conditions for providing to an employee being
investigated or to the employee's union representative, regular progress
reports of the investigation. The Authority found that management's
right under section 7106(a)(1) to determine its internal security
practices included the right to determine the nature and extent of the
information concerning an investigation which it would disclose, and to
whom it would disclose that information. Thus, the Authority concluded
that as section (b) prescribed the conditions under which such
information would be disclosed, it directly interfered with management's
right to determine its internal security practices under section
7106(a)(1). Compare National Treasury Employees Union and Department of
the Treasury, U.S. Customs Service, 9 FLRA 983, 987 (1982) (The
provision requiring employees to be notified as soon as practicable of
written non-criminal complaints was found to be negotiable. The
provision reserved management's rights to control the timing to the
notice and to not disclose confidential information).
In the present case, the proposal requires the Union to be notified
immediately after the results of an investigation are known to
management. As previously noted, there is nothing in the language of
this proposal which permits management to determine the nature and
extent of the information which will be disclosed or to whom it will
disclose that information or even to determine the timing of such
disclosure. Thus, based on General Services Administration, and the
cases cited in that decision, we conclude that Proposal 5 interferes
with management's right to determine its internal security practices
under section 7106(a)(1). In view of this determination it is
unnecessary to address the Agency's other contentions.
IV. Proposals 2 and 6
Proposal 2
Bargaining Unit employees will be clearly informed of the
supervisors and/or management officials who have authority to
supervise their performance and/or on-the-job conduct. In the
absence of an employee's involvement in a serious violation of
agency regulation, unsafe or actual criminal offense which
obviously requires immediate action, he/she will not be subjected
to counseling or impromptu correcting admonishments by persons
other than their designated supervisors.
Proposal 6
Unit employees may request leave for durations for 8 hours or
less from their immediate supervisors.
A. Positions of the Parties
The Agency contends that because Proposals 2 and 6 concern duties
assigned to managers and supervisors the proposals do not concern
conditions of employment of bargaining unit employees and in addition,
violate management's rights to assign employees and to assign work under
sections 7106(a)(2)(A) and 7106(a)(2)(B) of the Statute. Furthermore,
the Agency contends that Proposal 2 violates management's right to
discipline under section 7106(a)(2)(A). The Union argues that Proposals
2 and 6 are negotiable procedures under section 7106(b)(2) of the
Statute.
B. Analysis and Conclusion
The first sentence of Proposal 2 merely provides that bargaining unit
employees will be clearly informed of which personnel within the Agency
will exert supervisory authority over them. The Agency has not in any
manner indicated how a requirement that it inform employees as to which
Agency personnel would exert supervisory authority over employees
interferes with management's rights to assign employees or to assign
work. In fact, the Agency states that it would have no objection to the
negotiablity of a proposal limited to that result. Statement of
Position at 6. Accordingly, and contrary to the Agency's claims, we
find that the first sentence of Proposal 2 does not violate management's
rights to assign employees or to assign work. Rather, the first
sentence is a negotiable procedure under section 7106(b)(2). See
American Federation of Government Employees, AFL-CIO, Local 1999 and
Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 152, 155 (1979), enforced sub nom. Department of Defense
v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
In agreement with the Agency, we find that the balance of Proposal 2
violates management's right to assign work. Specifically, and except
for certain limited circumstances, the balance of Proposal 2 expressly
precludes the Agency from assigning specified tasks to personnel other
than the employee's designated supervisor.
In this connection, the Authority has consistently held that
management's right to assign work under section 7106(a)(2)(B)
encompasses the right to assign specific duties to particular
individuals, including management officials, and that provisions which
interfere with this right are nonnegotiable. For example, National
Association of Government Employees, AFL-CIO, Local R14-87 and
Department of the Army and the Air Force, Kansas Army National Guard, 19
FLRA 381 (1985); American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), aff'd
mem. sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10,
1985). Since the balance of Proposal 2 expressly concerns the
assignment of specified tasks to management or supervisory personnel it
is nonnegotiable for the above reasons. In view of this determination
it is unnecessary to address the Agency's other contentions concerning
the negotiability of the balance of Proposal 2.
Although the balance of Proposal 2 substantively interferes with
management's right to assign work under section 7106(a)(2)(B) and thus,
does not constitute a negotiable procedure under section 7106(b)(2), the
defect could be cured if the requirement to assign specified tasks to a
particular individual was deleted.
However, we disagree with the Agency's contention concerning Proposal
6. This proposal simply provides that bargaining unit employees may
request leave from their immediate supervisors. The proposal does not
require an immediate supervisor to act on that request. Unlike Proposal
2, Proposal 6 does not require that any particular duties be assigned to
an employee's supervisor and it does not prohibit the assignment of
duties to other personnel. Therefore, it does not conflict with the
Agency's right to assign employees and work. It is a negotiable
procedure under section 7106(b)(2) of the Statute.
V. Proposal 7
Employees selected for reassignment will be permitted to assume
the duties of his/her new position within two weeks, barring a
compelling need to delay the assignment. Any delay will be fully
explained to the affected employee and to the union.
A. Positions of the Parties
The Agency asserts that Proposal 7 is inconsistent with management's
right to assign employees and assign work under section 7106(a)(2)(A)
and section 7106(a)(2)(B) of the Statute, respectively. The Union
argues that the proposal concerns working conditions of bargaining unit
employees and that it is a negotiable procedure under section 7106(b)(2)
of the Statute.
B. Analysis and Conclusion
The Agency retains discretion under section 7106(a)(2)(A) to
establish the requirements of a position, that is, the qualifications
and skills needed to do the work. It also retains the discretion to
determine which employees will be assigned. See American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enf'd as
to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140
(D.C. Cir. 1981), cert. denied sub nom. American Federation of
Government Employees, AFL-CIO v. FLRA, 455 U.S. 945 (1982). In this
case, Proposal 7 does not interfere with the Agency's right to assign
employees under section 7106(a)(2)(A) because the proposal concerns
employees already selected by management for assignment.
However, Proposal 7 would require in most circumstances that an
employee selected for reassignment assume the duties of the new position
within two weeks. The Authority has held that management's right to
assign work under section 7106(a)(2)(B) includes the discretion "to
determine when the work which has been assigned will be performed."
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. NTEU v. FLRA,
692 F.2d 553 (D.C. Cir. 1982). Proposal 7 effectively eliminates
management's discretion to determine when the work which has been
assigned will be performed.
Because Proposal 7 substantively interferes with management's right
to assign work under section 7106(a)(2)(B), it is not a negotiable
procedure under section 7106(b)(2) of the Statute. See Wright-Patterson
Air Force Base, Ohio, 2 FLRA 604 (1980).
VI. Proposal 8
It is the responsibility of management to staff areas to the
extent practicable in such a manner as is conducive to the health
and safety of employees.
A. Positions of the Parties
The Agency contends that the proposal is inconsistent with
management's right to determine the number of employees assigned to any
organizational subdivision, work project, or tour of duty under section
7106(b)(1) of the Statute. The Union argues instead that Proposal 8
establishes a general nonquantitative requirement which is within the
Agency's duty to bargain.
B. Analysis and Conclusion
The Statute provides under section 7106(b)(1) that an agency may
negotiate at its election on the number of employees assigned to any
work project or tour of duty. Proposal 8 would require management to
staff work areas to the extent practicable for health and safety
reasons. In National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced
sub nom. NFFE Local 1167 v. FLRA, 681 F.2d 896 (1982), the Authority
concluded that Proposal 6 in that case which precluded management from
assigning just one employee in certain work situations because of health
and safety considerations directly interfered with management's right
under section 7106(b)(1) to determine the number of employees assigned
to any work project or tour of duty. Similarly, in this case Proposal 8
interferes with management's right under section 7106(b)(1) to determine
the number of employees assigned to any work project or tour of duty.
Thia analysis is not changed by the Union's argument that the term
"to the extent practicable" establishes a general nonquantitative
standard. That is, the plain language of the proposal would interfere
with management's discretion to determine the number of employees
required to do the work. See American Federation of Government
Employees, AFL-CIO, Local 3483 and Federal Home Loan Board, New York
District Office, 13 FLRA 446, 450-52 (1983) (rejecting the union's
contention that the phrase "to the extent practicable" removes a
substantive limitation that the proposal would have placed on the
agency's right to identify critical elements) and American Federation of
Government Employees, AFL-CIO, National Border Patrol Council and
Department of Justice, Immigration and Naturalization Service, 16 FLRA
251, 252 (1984) (rejecting the union's contention that the phrase "to
the maximum extent possible" leaves the agency with discretion to
exercise its right to assign work "without inhibition"). Accordingly,
we hold that Proposal 8 interferes with management's rights under
section 7106(b)(1).
Of course, the matters set out in section 7106(b)(1) may be
negotiated at an agency's election. Once such matters have been
negotiated into an executed agreement an agency cannot disapprove them
pursuant to its review of the agreement under section 7114(c) of the
Statute. National Association of Government Employees, Local R4-75 and
U.S. Department of the Interior, National Park Service, Blue Ridge
Parkway, 24 FLRA No. 7 (1986) (Provision 4). Thus, if the parties in
this case had executed a negotiated agreement which contained the
disputed language the Agency could not properly disapprove that language
under its section 7114(c) review.
VII. Proposal 9
The FLRA Members disagree over the negotiability of this proposal.
The decision and order on Proposal 9 and Chairman Calhoun's dissent
immediately follow this decision.
VIII. Proposal 10
A. When emergency situations arise such as severe weather
conditions or other mass emergencies that delay or prohibit
employees from coming to work the Medical Center Director may
excuse employees, where those employees make a reasonable effort
to get to work and are unable to do so.
B. The amount of time excused will depend on such factors as
the severity of the emergency situation and whether or not the
tardiness or absence was reasonably avoidable.
C. The Medical Center Director will not make a decision on the
amount of time to be excused without prior consultation with the
President of the Union or his designee.
A. Positions of the Parties
The Agency asserts that the proposal would interfere with
management's right "to take whatever actions may be necessary to carry
out the agnecy mission during emergencies" under section 7106(a)(2)(D)
of the Statute, and with management's right to assign work to employees
under section 7106(a)(2)(B) of the Statute. The Agency also asserts
that the proposal conflicts with an Agency regulation for which there is
a compelling need under section 7117(a)(2) of the Statute. The Agency
interprets the proposal as involving the union in internal management
deliberations. The Union argues that the proposal does not interfere
with management's rights and that the proposal does not conflict with an
Agency regulation for which there is a compelling need.
B. Analysis and Conclusion
Paragraphs A and B would establish the various factors management
would consider in deciding whether to grant excused leave in situations
where an employee is delayed or prohibited from coming to work due to
emergencies such as those arising from severe weather conditions.
Paragraph C requires the Agency to consult with the President of the
Union or his designee prior to deciding on the amount of time an
employee would be excused. It is clear from the record that the
proposal only pertains to emergency situations when an employee is
already unavoidably delayed or unable to come to work. It does not
remove an employee's obligation to be at work during emergency
situations. As such, it does not interfere with management's rights
under either section 7106(a)(2)(B) or section 7106(a)(2)(D) of the
Statute.
The Agency contends that the proposal conflicts with an Agency
regulation for which there is a compelling need, namely, VA Manual MP-5,
Part I, Chapter 630. The Agency's contention is without merit. The
cited regulations provide that excused absences may be granted in only
very rare circumstances because all employees at medical facilities are
deemed to be providing critical services. The proposal does not require
the Agency to excuse employees from work. Instead, Paragraphs A and B
only establish factors management would consider in granting excused
absences in certain emergency situations. Furthermore, the regulation
itself delegates discretionary authority to local managers to grant
excused absences in certain emergency situations. Thus, a proposal
concerning the factors management will consider in implementing its
discretionary authority to grant excused absences is entirely consistent
with the Agency's own regulation.
Finally, as to Paragraph C, we note it only requires the Agency to
consult with the Union prior to making a decision on the amount of time
that will be excused in certain emergency situations. There is nothing
in the record in this case which indicates that the term "consultation"
as used in Paragraph C has a meaning other than that normally ascribed
to it, that is, to meet and discuss a matter but not to negotiate on it.
See, for example, section 7113 (b) of the Statute; Roberts' Dictionary
of Industrial Relations 126 (3d ed. 1986). In our opinion, Paragraph C
constitutes nothing more than a vehicle by which the Union can offer its
nonbinding views on the granting of excused absences before the Agency
actually deliberates and makes a decision on that matter. Thus,
Paragraph C does not involve the Union in the Agency's deliberative
process.
In conclusion, we find that Proposal 10 does not interfere with
management's rights under section 7106(a)(2)(B) or section
7106(a)(2)(D). Further, the proposal does not conflict with an Agency
regulation for which a compelling need has been established under
section 7117(a)(2) of the Statute.
IX. Order
The Union's petition for review as to the second sentence of Proposal
2 and Proposals 5, 7, and 8 is dismissed. The Agency must bargain upon
request (or as otherwise agreed) on Proposal 1, the first sentence of
Proposal 2 and Proposals 6 and 10. /3/
Issued, Washington, D.C., May 20, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 9
Proposal 9
If the employer decides to fill vacant positions, they will do
so as soon as practicable when the staff shortages create an undue
hardship on unit employees.
A. Positions of the Parties
The Agency asserts that Proposal 9 interferes with managment's right
to determine the number of employees assigned to an organizational
subdivision, work project or tour of duty under section 7106(b)(1), and
management's right to assign employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute, respectively. The Union argues
that the proposal does not compel the Agency to fill any position at any
particular time.
B. Analysis and Conclusion
The effect of the proposal is that once management has decided to
fill vacant positions, it will make a selection "as soon as practicable"
when staff shortages create an undue hardship on unit employees. As
such, contrary to the Agency's position, the proposal would not require
management to fill any vacant position that it had not already decided
to fill or establish a particular time within which the vacant position
must be filled. Also, this proposal does not establish the number of
employees necessary to avoid hardship to unit members. Thus, based upon
the plain language of the proposal and the Union's stated intent, we
conclude that Proposal 9 does not interfere with management's rights and
is within the duty to bargain. See National Treasury Employees Union,
Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C.,
14 FLRA 598 (1984), rev'd and remanded on other grounds sub nom. NTEU v.
FLRA, 813 F.2d 472 (D.C. Cir. 1987) (Proposal 1 which established a time
limit for the agency to exercise its rights to fill vacant positions
found to be a negotiable procedure under section 7106(b)(2) of the
Statute).
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 9. /4/
Issued, Washington, D.C., May 20, 1987.
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun On Proposal 9
Proposal 9 provides that after the Agency decides to fill vacant
positions, it will do so "as soon as practicable" when staff shortages
create undue hardships. In the majority's view, the proposal requires
only that the Agency make a selection as soon as practicable. I believe
that the proposal contemplates more than selection; consistent with my
reading of the proposal and the Union's intent, the proposal would
require the Agency to effect the selection and assign work to the
selectee. As such, in my view this proposal is like Proposal 7 which
would require the Agency to permit employees who have been selected for
reassignment to assume their new duties within 2 weeks "barring a
compelling need to delay the assignment."
Proposal 7 is found to be nonnegotiable because the right to assign
work includes the right to determine when the work will be performed.
The time period during which the right to assign work normally must be
exercised in Proposal 7 is more specific than the time period in
Proposal 9. Both proposals, however, would open up core management
rights to an arbitrator to determine when work should be (or should have
been) assigned.
In addition, by providing a standard of "undue hardship on unit
employees," the proposal would enable an arbitrator to determine whether
the Agency's staffing levels are appropriate. In National Treasury
Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), the court
stated that "the right to determine what work will be done, and by whom
and when it is to be done, is at the very core of successful management
of the employer's business(.)" In my view, Proposal 9 interferes with
the Agency's management of its business.
For these reasons, I do not join the majority opinion.
Issued, Washington, D.C. May 20, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Committee established under this program review health care
information on a confidential and restrictive basis for the purpose of
improving the quality of health care and the utilization of VA
resources.
(2) See Appendix to this decision for the text of section 7106.
(3) In finding these proposals to be within the duty to bargain we
make no judgment on their merits.
(4) In deciding that Proposal 9 is within the duty to bargain we make
no judgment as to its merits.