[ v24 p147 ]
24:0147(21)NG
The decision of the Authority follows:
24 FLRA No. 21
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SEIU, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL
CENTER, GRAND JUNCTION, COLORADO
Agency
Case No. 0-NG-1211
DECISION AND ORDERS ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of four Union proposals.
II. Union Proposal 1
ARTICLE 8
Section 1. Matters appropriate for mid-contract negotiations
shall include those negotiable issues proposed by either party
which are either newly formulated, or changes to established
personnel policies and practices during the term of this
agreement, which affect the working conditions of unit employees.
Section 3(d). If the proposal is made by the Union, the time
limits and procedures described in section 3(b) will be utilized,
with the roles reversed.
A. Positions of the Parties
The Agency contends that Union Proposal 1 would require it to bargain
over Union-initiated proposals during the term of the agreement. The
Agency argues that it has no duty to bargain over such proposals absent
management-initiated changes in conditions of employment, citing the
Authority's decision in Internal Revenue Service, 17 FLRA 731 (1985),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 85-1361 (D.C. Cir. June 14, 1985). The Agency also claims
that the proposal conflicts with the parties' master agreement which
limits mid-term bargaining to proposals concerning management-initiated
changes.
The Union contends that the Internal Revenue Service case does not
prohibit the parties from agreeing to bargain on Union-initiated
mid-term proposals. The Union further argues that the section of the
master agreement cited by the Agency does not apply to negotiations at
the local level.
B. Analysis
1. Union-initiated mid-term proposals
In Internal Revenue Service, cited by the Agency, the Authority held
that an agency has no general obligation to bargain over union-initiated
proposals during the term of a collective bargaining agreement.
However, the Authority also held that an agency may be obligated to
bargain over such a union-initiated proposal where (1) management seeks
to alter an established condition of employment in a manner which is not
precluded by the agreement; (2) the proposal is submitted consistent
with a reopener clause in the parties' agreement; or (3) the proposal
is made under section 7106(b)(2) and (3) of the Statute in response to
the exercise of a management right under section 7106(a). While an
agency has no duty to bargain over mid-term proposals initiated by a
union, there is nothing in the Internal Revenue Service case that would
prohibit an agency from entering into a reopener clause like Union
Proposal 1 which requires it to do so.
2. Interpretation of master agreement
The record in this case fails to provide a basis for substantiating
the Agency's assertion that provisions of the parties' master agreement
limit negotiations on this proposal. Further, to the extent that there
are factual issues in dispute between the parties concerning the duty to
bargain in the specific circumstances of this case, these issues may be
raised in other appropriate proceedings. See American Federation of
Government Employees, AFL-CIO, Local 2736 and Department of the Air
Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air
Force Base, Michigan, 14 FLRA 302 (1984).
C. Conclusion
For the reasons set forth above, Union Proposal 1 is within the duty
to bargain.
III. Union Proposal 2
ARTICLE 10
Section 4. A steward or officer may request permission from
his supervisor to report on duty one hour early or late, and be
relieved from duty one hour early or late, whichever may be
required, to permit the steward to assist an employee who is
working a different shift, in the processing of a grievance during
both the steward's and employee's on-duty time. This request will
be granted unless the change would result in the tour of duty
extending over two days.
A. Positions of the Parties
The Agency contends that the proposal would interfere with its right
under section 7106(a)(2)(B) to assign work by prohibiting it from
assigning duties to the union officers or stewards during the first or
last hour of a shift so that the employee could process grievances. The
Agency also argues that Proposal 2 would have the effect of granting
compensatory time to an employee in circumstances not authorized under 5
U.S.C. Section 5543. The Agency further contends that the proposal is
inconsistent with 5 C.F.R. Section 610.121, a Government-wide
regulation. It claims that the proposed adjustment would require the
Agency to schedule employees on the basis of union representational
activities rather than the Agency's mission as required by the
regulation.
The Union contends that its proposal does not interfere with the
Agency's right to assign work. The Union claims that Proposal 2 simply
facilitates the use of official time by the Union and employees by
providing for an adjustment in a union representative's shift to overlap
the shift of an employee. Such an adjustment, the union explains, would
permit the union representative and the employee to meet while both were
in a duty status, using official time that the Agency had otherwise
agreed to grant to the two employees. As to the separate matter of
official time, the Union points out that employees are only permitted to
request and management is only required to consider such requests.
Management may decide that either the employee or the union
representatives cannot be spared for particular times requested to
conduct representational activities and thus may deny the request.
The Union also claims that the proposal would enhance an employee's
ability to have the union representative of his or her choice. Finally,
the Union contends that Proposal 2 would not require the grant of
compensatory time since it would not affect the number of hours worked
by an employee during the week.
B. Analysis and Conclusions
As the Authority has previously indicated, the parties may negotiate
procedures and practices which do not negate an agency's rights but
which would enable a union to implement its statutory rights and duties
with respect to the representation of employees. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Union Proposal 7). In National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 926 (1979), the Authority found that a proposal that
would adjust the starting and quitting times of employees did not
violate the agency's rights under section 7106(b)(1) and was within the
duty to bargain. As explained by the Union, Proposal 2 is concerned
simply with adjusting the starting and quitting times of union officials
when those officials are processing grievances involving employees on
shifts other than their own. Thus, the proposal would facilitate the
carrying out of representational activities as an adjunct to whatever
separate agreements directly concerned with use of official time that
the parties are able to reach in particular circumstances. As the Union
has indicated, the Agency may take into account its work assignment
requirements in arriving at those separate agreements and in acting on
individual requests pursuant to those agreements.
As interpreted, Proposal 2 is to the same effect as Proposal 1 in
National Association of Government Employees, Local R14-8 and Veterans
Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986),
which we found to be within the duty to bargain. For the reasons stated
more fully in that deicsion, Proposal 2 is negotiable in this case.
Additionally, like the proposal in VA Medical Center, Topeka, we find no
basis upon which to conclude that the Union's proposal here either
concerns a grant of compensatory time or requires the Agency to schedule
employees in a manner other than that required by 5 C.F.R. Section
610.121.
IV. Union Proposal 3
ARTICLE 11
Section 2. When an employee changes work shifts, he will not
be required to report for duty for two shift periods. The
Dietetics Service will be exempted from this requirement.
Section 9. Employees will not be required to work more than
two tours of duty in one workweek except to allow for a minimum of
two shift periods between the end of one tour and the beginning of
the next.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. The
Agency argues that the proposal would require it to provide employees
with two shift intervals between each shift worked by an employee
regardless of actual work requirements.
The Union contends that the proposal does not conflict with the
regulation cited by the Agency. It claims that Proposal 3 does not
prevent the Agency from acting at all to schedule employees in
accordance with mission requirements.
B. Analysis and Conclusion
The Authority finds that Union Proposal 3 is outside the duty to
bargain for a reason other than that raised by the Agency. Union
Proposal 3 is essentially the same as Union Proposal 2 in VA Medical
Center, Topeka, which we found to violate management's right to assign
work. The proposal in that case would have prohibited the agency from
scheduling an employee to work on a shift if that employee had worked
during the previous eleven hours, or to schedule an employee for two
different tours of duty in the same week, regardless of the agency's
actual work requirements and whether that employee's particular skills
were needed on a particular shift. We found that the proposal would
place a condition upon the agency's exercise of its right to assign work
and could prevent the Agency from determining what duties were to be
performed on what shift in violation of section 7106(a)(2)(B).
Similarly, Union Proposal 3 here would prohibit the Agency from
scheduling an employee to work on a shift where the employee had worked
on one of the two preceding shifts, or to work two tours of duty in the
same week, regardless of the Agency's work requirements. Accordingly,
for the reasons set forth more fully in VA Medical Center, Topeka, we
conclude that Union Proposal 3 here violates management's right to
assign work and is outside the duty to bargain.
V. Union Proposal 4
ARTICLE 11
Section 6. Except in cases that adversely affect patient care,
employees' days off will be consecutive. Employees' days off will
not be arbitrarily split. An employees' written request for split
days off will be considered.
A. Positions of the Parties
The Agency contends that Union Proposal 4 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. It
argues that Union Proposal 4 would require it to schedule employees for
consecutive days off regardless of the Agency's actual work
requirements. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
The Authority finds that Union Proposal 4 is to the same effect as
Union Proposal 3 which we held to be within the duty to bargain in the
VA Medical Center, Topeka case. We found that the proposal in that
case, which similarly would have provided employees with consecutive
days off unless patient care would be adversely affected, was not
inconsistent with management's rights and would not prevent the agency
from scheduling employees consistent with actual work requirements as
provided in 5 C.F.R. Section 610.121. Union Proposal 4 here expressly
states that the Agency need not provide employees with consecutive days
off where patient care would be adversely affected. Accordingly, for
the reasons set forth more fully in VA Medical Center, Topeka, we
conclude that Union Proposal 4 is within the duty to bargain.
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning Union Proposals 1, 2 and 4. /*/
IT IS FURTHER ORDERED that the petition for review as to Union Proposal
3 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 21, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.