48:0041(4)NG - - AFGE, Local 2143 and VA Medical Center, Boston, MA - - 1993 FLRAdec NG - - v48 p41
[ v48 p41 ]
The decision of the Authority follows:
48 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
August 6, 1993
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a single proposal relating to the use of rotating shifts for police officers.
For the reasons set forth below, we find that the proposal is nonnegotiable.
Management and the Union agree to continue our past practice of utilizing Master Contract Article 34, Section 18-Shift [C]hange & Relocation (see attached [Article 34, section 18]) to place police officers into vacant positions as they occur at the [p]olice officers [sic] request.(2)
III. Positions of the Parties
A. The Agency
As a preliminary matter, the Agency maintains that the Union has "waived [its] rights to engage in bargaining over rotating tours of duty assignments . . . ." Agency's Statement of Position at 6. In this regard, the Agency contends that, when it proposed assigning police officers to rotating rather than fixed shifts, the Union "made no demand to bargain[.]" Id. at 10. Consequently, the Agency contends that it met any "bargaining obligation it may have had over [it's] decision to adopt the rotating shift policy[,]" and that the Union's failure to request bargaining at that time "constituted a clear waiver of [its] right." Id.
Next, the Agency contends that the proposal is inconsistent with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that, as a "part of its plan to secure or safeguard its personnel, its physical property, and its operations[,]" it initiated rotating shifts "to assure that each officer [was] provided an opportunity to work under all circumstances . . . that might occur at any medical center." Id. at 11, 12-13. The Agency contends that the policy of rotating shifts "represents a reasonable Agency effort to assure that each police officer has adequate experience to perform in the sensitive medical center environment, and, therefore, is an exercise of its right to establish internal security practices." Id. at 13. According to the Agency, because the "proposal would totally bar the Agency from making any tour of duty changes . . . without the consent of the employee[,]" it is nonnegotiable. Id.
The Agency also contends that a "decision to change the tour of duty of . . . employees is negotiable only at the election of the Agency" under section 7106(b)(1) of the Statute. Id. at 14 (emphasis omitted). In this connection, the Agency claims that, as the proposal is "designed solely to prevent" the Agency from changing Agency police officers' tours of duty, the proposal directly interferes with its right under section 7106(b)(1) of the Statute. Id. at 15. Finally, the Agency contends that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it "totally proscribe[s] the exercise of management's rights to assign employees particular tours of duty." Id. at 17.
B. The Union
The Union contends that the proposal is "a procedure affecting conditions of employment [which] is not barred by any Federal [l]aw, Government[-]wide rule or regulation . . . ." Union's Reply Brief at 1. The Union asserts that all police officers are "equally qualified to perform any of the duties and responsibilities of a [p]olice officer on any shift[,]" and that the "[p]roposal merely is a procedure to be used to allow [the Agency] to select a [p]olice officer to staff the numbers [it] determines for each shift." Id. at 2. In this regard, the Union claims that the proposal "merely requires [the Agency] to consider an employee's request to be placed into a vacant position of the same grade on another shift." Id. at 1.
The Union also contends that the proposal does not interfere with the Agency's right to determine its internal security practices. In this connection, the Union claims that the proposal permits the Agency to "staff vacancies on all shifts without employee consent [and] . . . with no interference to [the Agency's] rights to determine internal security practice[s]." Id.
IV. Analysis and Conclusions
A. Preliminary Matter
As a preliminary matter, we reject the Agency's argument that we should dismiss the Union's petition for review because the Union waived its right to bargain over the rotation policy.(3) The Authority resolves in a negotiability proceeding only issues regarding whether a disputed proposal is consistent with law, rule, or regulation. Moreover, provided the conditions for review of a negotiability issue have been satisfied, as they have been satisfied in this case, a union is entitled to a decision despite the claimed existence of additional duty to bargain issues. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 43 FLRA 1140, 1143 (1992). Issues concerning the duty to bargain should be resolved in other appropriate proceedings. Id.
B. Right to Determine Internal Security Practices
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and practices which are part of its plan to secure or safeguard its personnel, physical property, and operations against internal and external risks. See International Brotherhood of Police Officers and U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 46 FL