49:0852(81)NG - - NAGE, Local R1-109 and VA Medical Center, Newington, CT - - 1994 FLRAdec NG - - v49 p852
[ v49 p852 ]
The decision of the Authority follows:
49 FLRA No. 81
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
April 26, 1994
Before Chairman McKee and Members Talkin and Armendariz.
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 one proposal. The proposal provides official time for a Union representative to attend unemployment compensation hearings to which the Agency sends a representative. For the following reasons, we find that the proposal is nonnegotiable.
A Union representative may attend[,] in an official time capacity, those hearings related to an unemployment compensation claim where the [Agency] likewise sends a representative.
III. Positions of the Parties
The Agency acknowledges that section 7131(d) of the Statute authorizes unions to negotiate over the use of official time for representational activities, but contends that such activities do not include appearances at unemployment compensation hearings concerning former employees.(1) The Agency asserts that the proposal would require it to grant official time to Union representatives to attend unemployment compensation hearings "not based on whether the Union would perform any representational duties, but solely on the basis of whether or not management sent someone to the hearing." Statement of Position at 5. The Agency contends that the Union has not demonstrated any relationship between the proposal and any labor-management or other employment activity because "the Union does not plan to represent former employees in unemployment compensation hearings" and such hearings have "nothing to do with collective bargaining, conditions of employment, or any other representational activity in which the [U]nion may engage[.]" Id. at 5-6. The Agency maintains, therefore, that the proposal is not negotiable under section 7131(d) of the Statute.
Additionally, the Agency argues that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that, by requiring management to grant a request for official time, the proposal places restrictions on management's ability to deny that request without regard to management's need for the employee's services during the period covered by the request. Further, the Agency claims that the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute because it imposes substantive limitations on management's right to assign work. Finally, the Agency asserts that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with management's right to assign work.
The Union states that the proposal concerns the use of official time "for the purposes of representing employee interests at unemployment compensation hearings." Petition for Review at 1. The Union asserts that "[t]he proposal is both an appropriate arrangement, and a procedure under 5 USC § 7106(b), as well as an appropriate use of official time pursuant to 5 USC § 7131(d)." Id.
IV. Analysis and Conclusions
For the following reasons, we find that the proposal is nonnegotiable.
A. Sections 7131(d) and 7106(a)(2)(B) of the Statute
Official time may be negotiated under section 7131(d) of the Statute for labor-management relations activities. See, for example, American Federation of Government Employees, National Immigration and Naturalization Service Counsel and U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 45 FLRA 391, 399 (1992) (AFGE/INS), enforced in relevant part, 4 F.3d 268, 271-73 (4th Cir. 1993); and National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, MA, 23 FLRA 542, 543 (1986). Official time negotiated under section 7131(d) constitutes an exception to management's right to assign work under section 7106(a)(2)(B) of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 346-48 (1992) (BATF) (Member Armendariz dissenting in part as to other matters); and Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 588 (1987). Official time may also be negotiated "in other circumstances unrelated to labor-management relations activities, provided that the granting of official time in those other circumstances is otherwise consistent with the Statute and other applicable laws and regulations." American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546, 553 (1991). See also AFGE/INS. However, as official time for activities other than labor-management relations activities is not encompassed by section 7131(d) of the Statute, such official time is not excepted from management's right to assign work.
The Authority previously has found that matters pertaining to unemployment compensation hearings do not concern labor-management relations activities. U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362, 371 (1990) (National Border Patrol Council); and Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA 391, 392-93 (1987) (SSA), request for reconsideration denied, 29 FLRA 194 (1987). The record before us does not provide a basis for reaching a different conclusion here.