U.S. Federal Labor Relations Authority

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National Association of Government Employees, Local R1-109 (Union) and U.S. Department of Veterans Affairs, Connecticut Healthcare System, Newington, Connecticut (Agency)

[ v56 p1043 ]

56 FLRA No. 184







January 12, 2001


Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals. The Agency filed a statement of position, to which the Union did not respond.

      For the reasons which follow, we find that Proposal 1 is negotiable at the election of the Agency and that Proposal 2 is within the Agency's duty to bargain.

II.     Background

      The Union's proposals were submitted in response to the Agency's decision to change the tours of duty of five administrative health technicians. The technicians currently have a tour that starts at 7:30 a.m. However, "to better meet the needs of the areas administratively supported by health technicians[,]" the Agency assigned four of the technicians to tours that begin at 8:00 a.m. and one of the technicians to a tour that begins at 8:30 a.m. Petition for Review, Attachment 4.

III.     Proposals  [n1] 

Proposal 1
The Union proposes that the Employer maintain the original schedule and address occasional patient care issues through the use of overtime/compensatory time as applicable.
Proposal 2
The Union proposes that the Employer explore the use of AWS to alleviate patient care issues.

IV.     Positions of the Parties

A.     Agency

      The Agency claims that the Union's proposals affect management's right to determine the mission, budget, organization, number of employees, and internal security practices of the Agency under § 7106(a)(1). The Agency also claims that the Union's proposals are negotiable at its election under § 7106(b)(1) and that it does not elect to bargain over them.

      With regard to the Union's first proposal, the Agency asserts that the use of overtime and compensatory time would interfere with its management rights under § 7106(a)(1). As the Agency explained in a letter to the Union, "the underlying purpose of the tour changes is to provide better customer service to [V]eteran patients through alignment of employee tours of duty with those primary hours during which [V]eterans are scheduled to receive medical services and to more efficiently operate its healthcare programs." Petition, Attachment 2. Even if the proposal did not interfere with the fulfillment of its mission, the Agency maintains that it would not promote the efficiency of the government to utilize overtime or compensatory time.

      With regard to the Union's second proposal, which concerns the use of AWS, the Agency submits that it is not within the duty to bargain under § 7106(a)(1) or (b)(1) of the Statute. The Agency explains that the clinics where the technicians work are currently open from 8:00 a.m. to 4:30 p.m. According to the Agency, although there may be times that patients are in the clinics beyond 4:30 p.m., it is a rare occasion and the use of AWS in these circumstances is not appropriate. [n2]  [ v56 p1044 ]

B.     Union

      The Union did not file a response to the Agency's Statement of Position. However, in its Petition for Review, the Union asserts that Proposal 1 is an appropriate arrangement offered in response to the Agency's "continual and continuing changes" to the technicians' tours of duty. According to the Union, these changes in the technicians' tours of duty affect such issues as outside employment, transportation, and childcare. With regard to Proposal 2, the Union asserts that it was offered as an Alternative Work Schedule Arrangement pursuant to § 7130 of the Statute. The Union also submits that the proposals are within the duty to bargain under § 7106(b)(1) of the Statute.

V.     Proposal 1

A.     Meaning of the Proposal

      The plain wording of the Union's first proposal would require the Agency to maintain the original schedule of the five administrative health technicians and to use overtime and compensatory time to address patient care issues. The Union explains in its Petition for Review that Proposal 1 was intended to "allow for optimal employee working conditions while ensuring [that] patient care obligations [are met] within budgetary restraints." Petition at 3.

B.     Analytical Framework for Resolving Negotiability Disputes Under § 7106(a) and (b) of the Statute

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 177-78 n.10 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998).

      In this case, the Union does not dispute the Agency's contention that Proposal 1 affects management's rights under § 7106(a)(1) of the Statute. Therefore, we analyze below whether a claim has been raised and established that Proposal 1 is within the duty to bargain under § 7106(b). [n3] See NAGE, Local R4-45, 55 FLRA 370, 371-72 (1999).

C.     Proposal 1 Does Not Constitute an Appropriate Arrangement under § 7106(b)(3) of the Statute

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv. v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991). The claimed arrangement must also be sufficiently "tailored" to compensate only those employees suffering adverse effects attributable to the exercise of management's rights. See id.

      If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id. [ v56 p1045 ]

      In this case, the Union does not explain, and the proposal does not by its terms address, the manner in which it would compensate for the adverse affect resulting from the exercise of a management right. Where a union offers no argument or authority to support an assertion that a particular proposal is within the duty to bargain under § 7106(b), the Authority will not consider the assertion. See American Federation of State, County & Municipal Employees, Local 2910, 53 FLRA 1334, 1342 (1998) (AFSCME Local 2910) and the cases cited therein (rejecting a union's bare assertion that a proposal was an appropriate arrangement under § 7106(b)(3)). We, therefore, reject the Union's assertion that Proposal 1 constitutes an appropriate arrangement under § 7106(b)(3). [n4] 

D.     Proposal 1 is Negotiable at the Election of the Agency under § 7106(b)(1)

      The Union has asserted that both of its proposals concern matters included in § 7106(b)(1) of the Statute. Although the Union provides no explanation for this assertion, the Agency does not contest it. Indeed, the Agency asserts that the Union's proposals involve the technicians' tours of duty, which it has elected not to bargain over under § 7106(b)(1). [n5] In these circumstances, we conclude that the proposal is negotiable at the election of the Agency. See United States Dep't of Commerce, Patent and Trademark Office, 53 FLRA 858, 870 (1997) (agency's failure to present any grounds for concluding that management action did not concern a matter subject to § 7106(b)(1) warrants conclusion that the action did concern a § 7106(b)(1) matter).

VI.     Proposal 2

A.     Meaning of the Proposal

      Consistent with its plain wording, Proposal 2 would require the Agency to consider the use of alternative work schedule arrangements for the five affected technicians in addressing patient care issues.

      The Union offers no specific explanation of this proposal. However, during the parties' post-petition telephone conference, the Union clarified that Proposal 2 was offered as an alternative to Proposal 1. Conference Report at 2. As it stated with regard to Proposal 1, the Union also states that Proposal 2 was intended to "allow for optimal employee working conditions while ensuring [that] patient care obligations [are met] within budgetary constraints." Petition at 3.

B.     Whether Proposal 2 Affects Management Rights under § 7106(a) of the Statute

      As its second proposal, the Union proposes that "the Employer explore the use of AWS (Alternative Work Schedules) to alleviate patient care issues." Petition, Attachment 3. In response, the Agency asserts that the use of AWS would not be appropriate because the clinics where the technicians work are operated between the hours of 8:00 a.m. and 4:30 p.m. The Agency further asserts that the proposal would interfere with its management rights under § 7106(a)(1).

      The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act) provides that an exclusive representative may negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. § 6130(a)(1). Consistent with the legislative history, the Authority has held that alternative work schedules for bargaining unit employees are "fully negotiable" subject only to the Work Schedules Act or other laws superseding it. AFGE, Local 1934, 23 FLRA 872, 873-74 (1986) (Lowry), modified as to other matters, NTEU, Chapter 24, 50 FLRA 330, 333 n.2 (1995). The Authority has consistently held since Lowry that proposals seeking to negotiate alternative work schedules are within the duty to bargain and enforceable under the Statute. E.g., NTEU, 39 FLRA 27, 34 (1991); United States Environmental Protection Agency, Research Triangle Park, N.C., 43 FLRA 87, 92-93 (1991).

      By its terms, the Union's second proposal requires only that the Agency explore the use of AWS to alleviate patient care issues but does not obligate the Agency to negotiate over such schedules. Nevertheless, as discussed above, with few limitations, AWS schedules are fully negotiable under Authority precedent. The Agency's contrary argument is limited to a claimed violation of the management rights provision of the Statute and, therefore, provides no basis for finding that the proposal is contrary to law. E.g., NTEU, 39 FLRA at 34; NFFE, Local 642, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land Management v. FLRA , 864 F.2d 89, 91-92 (9th Cir. 1988) (rejecting agency's arguments that the establishment of alternative work schedules conflicts with management rights under the [ v56 p1046 ] Statute). As such, we find that the Union's second proposal is within the duty to bargain.

VII.     Order

      The Union's first proposal is bargainable only at the election of the Agency. The Union's second proposal is within the duty to bargain. Therefore, the Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposal 2.

Footnote # 1 for 56 FLRA No. 184

   The record in this case has been supplemented through a post-petition telephone conference among the parties and Authority representatives pursuant to § 2424.23 of the Authority's Regulations. Consequently, the Record of the Conference, in which the Union modified its original proposals, has been considered by the Authority. See id. at § 2424.23(c).

Footnote # 2 for 56 FLRA No. 184

   Although not relevant to this proceeding, the Agency adds that the change in technicians' tours of duty was de minimus and should have caused no adverse effect. See Statement of Position at 3.

Footnote # 3 for 56 FLRA No. 184

   Our determination in this regard is based solely upon the Union's lack of response to the Agency's assertions. We do not adopt the Agency's interpretation of its management rights as set forth in § 7106(a) of the Statute and its application of that section to the Union's first proposal. Indeed, it has long been established under Authority precedent that the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned concerns the right to assign work under § 7106(a)(2)(B). See, e.g., NTEU, 3 FLRA 769, 775 (1980), aff'd sub nom. Nat'l Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).

Footnote # 4 for 56 FLRA No. 184

   It is well established in this regard that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See e.g., AFSCME Local 2910, 53 FLRA at 1342; NAGE, Local R3-10, 53 FLRA 139, 141-42 (1997).

Footnote # 5 for 56 FLRA No. 184

   Absent the Agency's apparent concession in this regard, Member Cabaniss would find that the Union's § 7106(b)(1) claim is a bare assertion and, therefore, would not address it.