43:0998(82)NG - - IFPTE and Interior, Bureau of Reclamation, Denver Office, Denver, CO - - 1992 FLRAdec NG - - v43 p998

[ v43 p998 ]
The decision of the Authority follows:

43 FLRA No. 82














January 15, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a proposal involving the selection of bargaining unit employees to serve on an advisory committee established to make recommendations to the Agency regarding the operation of its fitness center. For the reasons stated below, we find that the proposal directly interferes with management's rights to assign employees and assign work and is nonnegotiable.

II. Preliminary Matters

A. Timeliness

The Agency contends that the Union's petition for review is untimely because the Union was notified of the Agency's allegation of nonnegotiability "[b]y memorandum dated . . . September 27, 1991" and the petition was not filed until October 15, 1991. Statement of Position at 1. The Agency asserts that in order to be timely filed under 5 C.F.R. § 2424.3 the petition had to be filed within 15 days "after the date of the Agency's allegation . . . ." Id. at 2. The Union states in its petition for review that although the Agency's allegation of nonnegotiability was sent to it by facsimile transmission, the "original" was not "received" until "on or about" October 1, 1991. Petition for Review, Attachment 1.

The time limit for filing a petition for review of negotiability issues is 15 days after service on the Union of the Agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. Even assuming that the Union was served with the Agency's allegation on September 27, 1991, we conclude that the petition was timely filed. In order to be timely the Union would have had to file the petition by October 12, 1991. However, because October 12, 1991, was a Saturday the petition had to be filed on the next day that was neither a Saturday, Sunday or a Federal legal holiday. 5 C.F.R. § 2429.21. Monday, October 14, 1991, was a Federal legal holiday. The petition for review was filed on Tuesday, October 15, 1991, and is, therefore, timely.

B. Sufficiency of Petition for Review

The Agency asserts that the Union's petition for review fails to conform to 5 C.F.R. § 2424.4(a)(2)(ii), which provides that a petition for review shall contain an explicit statement of the meaning attributed to the proposal including, where the proposal is concerned with a particular work situation or other particular circumstances, a description of the situation or circumstances that will enable the Authority to understand the context in which the proposal is intended to apply. According to the Agency, the Union should be required to comply with 5 C.F.R. § 2424.4.

In its petition for review the Union notes that the proposal at issue in this case was submitted by the Union "in connection with impact and implementation bargaining concerning the ASC [Administrative Service Center] Fitness Center . . . ." Petition for Review at 1. Although no other explanatory language is included in the petition for review and the Union did not file a response to the Agency's statement of position, we find that the proposal is clear and that the petition complies with the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1130-31 (1988); American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987 (1987); American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Army and Air Force, National Guard Bureau, 15 FLRA 270, 270 n.1 (1984).

III. The Proposal

The Union will not accept management selecting bargaining unit employees on the Advisory Committee. We propose that bargaining unit employees be selected by the Union.

IV. Positions of the Parties

A. The Agency

The Agency argues that the proposal directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency explains that it has decided to open a fitness center on its premises for use by its employees. The Agency has established a seven-member employee Advisory Committee to monitor the operation of the fitness center and make recommendations to management. The committee consists "solely and exclusively" of bargaining unit members. Statement of Position at 3. In addition, a representative of the Union, designated by the Union, also serves on the Advisory Committee. The Advisory Committee meets during duty hours; while the Committee is meeting the Committee members are unavailable for work assignments.

The Agency contends that the effect of the proposal would be that the Union could "unilaterally appoint an Advisory Committee consisting of . . . bargaining unit members;" and that "[a]ll appointments by the Union would be made irrespective of the assignments and workloads of the appointees." Id. The Agency does not dispute the Union's ability to appoint the Union representative on the Advisory Committee. However, the Agency asserts that the Union's proposal relates to the appointment of employee members of the Advisory Committee and directly interferes with the Agency's right to assign work.

The Agency also argues that the proposal is outside the duty to bargain because it does not concern conditions of employment of bargaining unit employees. In this regard, the Agency states that as physical fitness activities are to