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29 FLRA NO. 13

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1256

     Union

     and

K.I. SAWYER AIR FORCE
BASE, MICHIGAN

     Agency

Case No. 0-NG-1260

 

DECISION AND ORDER
ON NEGOTIABILITY ISSUES 1

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 Relations Statute (the Statute) and concerns the negotiability of three provisions of a locally negotiated agreement which were disapproved by the Agency head in the course of review under section 7114(c) of the Statute.

II. Provision 1

Article II, Section 2, EEO COMMITTEE: The Activity Commander will appoint an EEO Committee. The Union will be offered the opportunity to nominate three unit employees for membership on the EEO Committee. The Activity Commander will make a final determination and appoint one from the list of three. That person will be considered to be the Union representative on the EEO Committee.

A. Positions of the Parties

The Agency contends that Provision 1 violates section 7106(a)(2) of the Statute based on the Authority's decision  in American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603 (1980), enforced as to other matters 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). The Agency argues that the provision requires management to assign duties on the EEO Committee to an employee designated by the Union to the exclusion of other Agency employees and therefore precludes management from assigning specific duties to particular employees. The Agency also argues that Provision 1 violates management's right to determine the personnel by which the Agency operations will be conducted.

The Union contends that Provision 1 is within the duty to bargain. The Union argues that the provision merely allows Union participation, in a minority role, on an advisory committee which does not have authority to make final decisions. The Union argues that based on Authority precedent, Government-wide regulations (Federal Personnel Manual Letter 713-29), and Air Force regulations (AFR 40-7131(7)(a)), Union representation on the EEO Committee is appropriate.

B. Analysis and Conclusion

We find that Provision I is within the duty to bargain.

In International Plate Printers, Die Stampers and Engineers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987), we held that Provision 29, which provided that certain unit employees designated by the Union would participate on the Equal Employment Opportunity Committee, did not concern the official duties assigned to those employees. We held that Provision 29 authorized a procedure for carrying out labor-management responsibilities consistent with the Statute and was, therefore, within the duty to bargain. In finding the provision to be within the duty to bargain, we specifically rejected the agency's reliance on Wright - Patterson and distinguished the proposal in that case as requiring the assignment of the duties of the Equal Employment Opportunity Counselor to the union nominee as part of his job function.

Provision 1 in this case is substantially similar to Provision 29 in Bureau of Engraving and Printing. Provision 1 provides that a unit employee chosen by the Activity Commander from the list submitted by the Union may participate on the Equal Employment Opportunity Committee. It is clear from the  record that the participation of the Union's representative on the Equal Employment Opportunity Committee does not concern the official duties assigned to that employee. Accordingly, for the reasons stated in Bureau of Engraving and Printing, we find that Provision 1 authorizes a procedure for Union participation in the administration of a program directly concerning conditions of employment of unit employees. See also National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270, 274 (1983). Accordingly, Provision 1 is within the duty to bargain.

III. Provision 2

Article 18, INCENTIVE AWARDS: The employer agrees to recognize one primary and one alternate Union representative to serve on each of the following committees, Base Suggestions Committee and Incentive Awards Committee. The Union representative will exercise full committee rights on suggestions or incentive awards pertaining to unit members. The Union will not vote on actions pertaining to non-unit employees.

A. Positions of the Parties

The Agency contends that Provision 2 violates its management rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency essentially argues that the Incentive Awards Committee performs a substantive role in determining whether an employee's performance warrants an award. Thus, based on Authority precedent, Provision 2 is outside the duty to bargain. The Agency does not make any arguments regarding the Base Suggestions Committee.

The Union contends that Provision 2 is within the duty to bargain. The Union argues that the Incentive Awards Committee does not have a substantive role and performs in a purely advisory capacity; specifically, the committee reviews proposed incentive awards and makes recommendations to the Base Commander.

B. Analysis and Conclusion

We find that Provision 2 is within the duty to bargain.

In American Federation of Government Employees, AFL - CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA No. 152 (1987), we held that Provision 9 which  required the Agency to select one employee to serve as the union representative on the incentive awards committee to be within the duty to bargain. In our decision we rejected the agency's contention that union membership on the incentive awards committee interfered with its rights under section 7106(a) of the Statute. Slip op. at 10. Provision 2 in this case is substantially the same as Provision 9 in Army Aviation Center, Fort Rucker. Accordingly, for the reasons set forth in that decision, we find Provision 2 within the duty to bargain.

IV. Provision 3

Article 24, Section 2, SAFETY AND HEALTH: Occupational Safety, Fire Prevention and Health Committee of which one member will be a Union representative. The Union will nominate two representatives to the activity Commander, the activity Commander will designate an alternate and primary Union representative to the Wing Safety Office. Meetings will be conducted at least once per quarter. The Union will be placed on distribution for all notices, to include the agenda, that are furnished all other committee members. The purpose of the committee is to advise the Commander on occupational safety, fire prevention, and health matters.

A. Positions of the Parties

The Agency contends that Provision 3 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the Occupational Safety, Fire Prevention and Health Committee was established pursuant to Department of Defense (DOD) Instruction 6055.1 and therefore, based on the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 2786 and Defense Mapping Agency, 20 FLRA 193 (1985), is an internal management committee and that performance of the committee's functions involves the assignment of work under section 7106(a)(2)(B).

The Union contends that Provision 3 is within the duty to bargain. The Union acknowledges that the Occupational Safety, Fire Prevention and Health Committee is governed by the provisions of DOD Instruction 6055.1 but argues that the DOD regulation prescribes union representation on the committee. 

B. Analysis and Conclusion

We find that Provision 3 is within the duty to bargain.

In National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office. Southern District of New York, New York, 22 FLRA No. 13 (1986), the Authority held that Provision 1 which provided for a Health and Safety Committee comprised of two union-named and two Agency-named members was within the duty to bargain because the committee constituted a forum for the expression of concerns over health and safety matters and the development of recommendations concerning them. The committee did not constitute a forum enabling the union to interject itself into the decision-making process by which management exercises its rights. In U.S. Department of Justice the Authority specifically rejected the Agency's argument that the provision was inconsistent with its right to assign work and employees. The Authority held that the designation of an employee to serve on the Health and Safety Committee did not constitute the assignment to a position and that the participation of a union representative on the committee did not concern official, prescribed duties. Slip op. at 3.

We find that Provision 3 is substantially similar to Provision 1 in U.S. Department of Justice. Provision 3 provides for Union representation on the Occupational Safety, Fire Prevention, and Health Committee. The wording of Provision 3 clearly sets forth the purpose of the committee as "to advise the Commander on occupational safety, fire prevention, and health matters." The provision neither requires the Agency to appoint particular individuals to the committee nor prescribes the official duties to be performed. Accordingly, for the reasons set forth in U.S. Department of Justice, we find that Provision 3 is within the duty to bargain.

In holding Provision 3 to be within the duty to bargain we find Defense Mapping Agency, on which the Agency relies, to be inapposite and distinguishable from Provision 3 on three grounds. First, in Defense Mapping Agency the provision in question prescribed specific functions to be undertaken by the committee members, for example, participation in safety and health inspections and monitoring office health and safety training programs. Second, the provision authorized the committee to bypass management and abandon its advisory role by requesting inspections by the Occupational Health and Safety Administration. Third, the provision required that the agency assign the responsibilities of the chairmanship of the committee to a union representative in alternate years. 20 FLRA 193, 197-198. The nature and function of the committee in that case went well beyond what was contemplated in DOD Instruction 6055.1, that is, an advisory committee. 2

In contrast, Provision 3 by its own terms provides for a purely advisory committee. Moreover, DOD Instruction 6055.1 specifically states that membership on DOD Safety and Occupational Health Councils "shall include representatives of appropriate functional areas ... and, when applicable, representatives of recognized labor organizations." DOD Instruction 6055.1, Paragraph 7.a.(2)(c) at 2-15 (October 26, 1984). Accordingly, our holding in Defense Mapping Agency is not pertinent here. We note that the Authority held the safety and health committee in Defense Mapping Agency to be outside the duty to bargain based on the specific functions of the committee prescribed in the provision. To the extent that our holding in Defense Mapping Agency implies that any safety and health committee established pursuant to DOD Instruction 6055.1 is outside the duty to bargain, it is not an accurate reflection of the substantive holding in that case.

Accordingly, Provision 3 is within the duty to bargain.

V. Order

The Agency is ordered to rescind its disapproval of Provisions 1, 2, and 3.

Issued, Washington, D.C., September 28, 1987

Henry B. Frazier, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

DOD Instruction 6055.1 provides, in relevant part:

7. Councils and Conferences

a. DOD Safety and Occupational Health Councils

(2) At the installation level, DOD Components shall (a) operate local safety and occupational health councils to foster mutual cooperation and open channels of communication, (b) make recommendations to the installation commander, and (c) perform such additional tasks as the commander or the council chairman may direct. Although these councils are established under this instruction primarily to address on-the-job personnel safety and health matters, the scope of their considerations may and should be expanded, as their title suggests, to include other safety concerns of the command.

(a) Such councils shall be chaired by the installation commander or the commander's designee, who shall be a senior line management official.

(c) Membership of these councils shall include representatives of appropriate functional areas, such as line and staff supervision, safety, occupational health, fire prevention, traffic control, personnel, facility engineering, injury compensation and, when applicable, representatives of recognized labor organizations. 

 

FOOTNOTES

Footnote 1 Chairman Calhoun recuses himself from the decision in this case because he is signatory to the regulation involved in this dispute.

Footnote 2 The relevant portions of DOD Instruction 6055.1 are set out in an appendix to this decision.

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