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23:0189(24)NG
The decision of the Authority follows:
23 FLRA No. 24
HAWAII FEDERAL EMPLOYEES
METAL TRADES COUNCIL,
AFL-CIO
Union
and
PEARL HARBOR NAVAL
SHIPYARD
Agency
Case No. 0-NG-1186
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 one Union proposal.
II. Union Proposal
The Agency notified the Union on July 8, 1985 that it had decided to
disestablish the Naval Occupational Safety and Health (NAVOSH)
Deficiency Abatement Committee. The Union proposal which is the subject
of this appeal is:
Our proposal is to keep the NAVOSH Deficiency Abatement
Committee and add equal numbers of Labor Representatives.
III. Positions of the Parties
A. Union Position
The Union argues the proposal is negotiable "regarding the impact to
the unit employees." It states that a committee such as this "can make a
contribution to the safety of all employees if it is given the
opportunity to function with equal numbers of employees and
representatives of management. This is allowed under the Executive
Order 12196 of February 26, 1980, Occupational Safety Health Programs
for Federal Employees." (Union Petition p. 1). Citing the Department of
the Navy instruction which established the Committee, the Union notes
that the function of the Committee was to periodically review safety
abatement projects and to determine if additional actions were needed to
assure their timely completion. The Committee was to address problems
with funding, priorities or implementation of specific projects.
B. Agency Position
The Agency declared in its allegation of nonnegotiability that the
proposal interferes with management's rights to assign work under
section 7106(a)(2)(B) of the Statute, to determine the organization of
the Shipyard under section 7106(a)(1) of the Statute, and to determine
the methods and means of performing work under section 7106(b)(1) of the
Statute.
The Agency's Statement of Position was untimely filed and will not be
considered. Section 2424.6 of the Authority's Rules and Regulations
requires that an agency file a statement of position within thirty days
after receipt of a petition for review. In its Statement, dated
November 29, 1985, the Agency noted that it received the petition on
October 29, 1985. Therefore the Statement was filed more than thirty
days after receipt of the petition and was untimely filed.
IV. Analysis
Attachments to the Union's petition for review indicate that the
Shipyard Occupational Safety and Health Deficiency Abatement Program was
set up by Instruction 5100.23A in 1983 under the authority of Executive
Order 12196, and provided for the NAVOSH Deficiency Abatement Committee.
The regulation designated as members the Shipyard Safety Director, a
designee of the Production Engineering Division, and a designee of the
Staff Civil Engineer Department. As noted, the duties of the committee
were to periodically review deficiency abatement projects and to
"address and resolve any problems with funding, priorities, or
implementation of specific projects." (Instruction 5100.23A, para. 5i,
April 19, 1983).
Based on these facts, the Authority finds that the Union's proposal
to reestablish the committee, and to "add equal numbers" of labor
representatives, is nonnegotiable on two of the grounds asserted by the
Agency.
1. The proposal interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. The duties of the Committee
involve the deliberative process of the Agency in making decisions and
resolving problems "with funding, priorities, or implementation of
specific projects." The proposal to require Union representatives on
such a committee constitutes an assignment of work to individuals not
chosen by management. See Fort Knox Teachers Association and Fort Knox
Dependent Schools, 22 FLRA No. 88 (1986) (Union Proposal 3). See also
National Federation of Federal Employees, Local 1431 and Veterans
Administration Medical Center, East Orange, New Jersey, 9 FLRA 998
(1982).
2. The proposal also interferes with management's right to determine
the organization of the Shipyard under section 7106(a)(1) of the
Statute. As noted, the Committee was created by a regulation to address
and resolve problems in the Agency's safety and health deficiency
abatement program. The decision to disestablish the Committee and
redistribute its functions determines the manner in which these Agency
responsibilities will be accomplished. The proposal's requirement to
reverse that decision, and add Union representatives, interferes with
management's decision as to the formal organizational structure by which
it makes decisions. Therefore, the proposal directly interferes with
management's rights under section 7106(a)(1) of the Statute, and is
outside the duty to bargain. See Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA 998, 999 (1982).
In view of our findings that the proposal is nonnegotiable because it
interferes with two management rights under section 7106(a) of the
Statute, we find it unnecessary to address the Agency's unsupported
additional assertion that the proposal would determine the methods and
means by which work is performed under section 7106(b)(1) of the Statute
and therefore is negotiable only at its election.
V. Conclusion
We conclude that the Union proposal is nonnegotiable because it
interferes with management's rights to (1) assign work under section
7106(a)(2)(B) of the Statute and (2) determine the organization of the
Shipyard under section 7106(a)(1) of the Statute.
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the petition for review be, and it hereby is,
dismissed.
Issued, Washington, D.C. August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY