[ v12 p76 ]
12:0076(26)NG
The decision of the Authority follows:
12 FLRA No. 26
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3511
Union
and
VETERANS ADMINISTRATION HOSPITAL,
SAN ANTONIO, TEXAS
Agency
Case No. O-NG-398
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of 60 Union proposals. /1/
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
/2/ The Union proposals at issue were proposed in response to the
promulgation of a proposed Agency regulation, Engineering Service
Memorandum No. 79-2 (hereinafter referred to as the Memorandum), which
contained operating instructions for Graphic Control Operators (GCO's).
The Agency initially argues that the Union's negotiability appeal
should be barred because the issues raised therein had previously been
raised and resolved through an unfair labor practice proceeding
(6-CA-331) in which the Union alleged a failure on the part of the
Agency to allow the Union an opportunity to participate in the
formulation and implementation of the Memorandum. Specifically, the
Agency claims that although the settlement agreement reached by the
parties on this matter, in effect, limited the bargaining obligation to
the impact and implementation of the Memorandum the proposals here in
dispute deal instead with the substance of the Memorandum-- the very
issue which was resolved by the parties in their settlement of the
unfair labor practice charge.
This contention cannot be sustained. The issue in the unfair labor
proceeding concerned an asserted failure to bargain generally over the
formulation of the Memorandum while the issue now before the Authority
concerns whether the specific Union proposals advanced in connection
with negotiations over the impact and implementation of the Memorandum
are inconsistent with law, rule or regulation within the meaning of
section 7117 of the Statute.
We turn now to the disputed proposals. Listed below for the most
part in sequential order are the provisions of the Agency's Memorandum
with the Union's proposed changes. /3/ Union Proposals 1-19 /4/
1. 1. PURPOSE:
a. To provide Graphic Control Operators (GCO) with general and
specific instructions applicable to their duties and
responsibilities. These operating instructions are (mandatory
performance) guidelines for GCO at this facility.
2. APPENDIX A SERVICE CALLS
2. POLICY: To insure prompt corrective action for call in service.
(These operating instructions are mandatory performance guidelines for
this facility.) These operating instructions are guidelines for GCO at
this facility.
3. APPENDIX B EMERGENCY GENERATOR
2. POLICY: To insure completion of the daily check list and that
the emergency generator is test run each Monday. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
4. APPENDIX C OPERATING ROOMS
2. POLICY: To insure proper temperature and humidity settings in
the operating rooms during their use. (These operating instructions are
mandatory performance guidelines for this facility.) These operating
instructions are guidelines for GCO at this facility.
5. APPENDIX D FIRE ALARM SYSTEMS
2. POLICY: To insure that fire alarm control panel is monitored at
all times during an actual or simulated fire. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
6. APPENDIX E GRAPHIC CONTROL SHIFT AND PLANT LOGS
2. POLICY: To insure completion of the official plant logs in
accordance with Veterans Administration maintenance of records. (These
operating instructions are mandatory performance guidelines for this
facility.) These operating instructions are guidelines for GCO at this
facility.
7. APPENDIX F WATER SOFTENERS
2. POLICY: To insure that the domestic water supplied to the
hospital is within the desired degree of hardness for each user. (These
operating instructions are mandatory performance guidelines for this
facility.) These operating instructions are guidelines for GCO at this
facility.
8. APPENDIX G PROGRAM AND RE-PROGRAM SYSTEM 7 COMPUTERS
2. POLICY: To insure that the System 7 Computer is programmed with
the holiday, weekend or week day tape at the correct times. (These
operating instructions are mandatory performance guidelines for this
facility.) These operating instructions are guidelines for GCO at this
facility.
9. APPENDIX H OFFICE AND MACHINE ROOM HOUSEKEEPING
2. POLICY: To insure that the graphic control area is neat and
clean at all times. (These operating instructions are mandatory
performance guidelines for this facility.) These operating instructions
are guidelines for GCO at this facility.
10. APPENDIX I THERAPEUTIC POOL
2. POLICY: To insure that the proper temperature and chemical
content is maintained in the therapeutic pool. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
11. APPENDIX J RADIO CONTACT
2. POLICY: To insure hourly radio contact during the hours of 4:00
P.M. thru 8:00 A.M., weekend and holidays for the safety of the
operator. (These operating instructions are mandatory performance
guidelines for this facility.) These operating instructions are
guidelines for GCO at this facility.
12. APPENDIX K TRASH AND LINEN SYSTEMS
2. POLICY: To insure that Trash and Linen Systems are operated on a
set schedule to provide the users with the greatest amount of access.
(These operating instructions are mandatory performance guidelines for
this facility.) These operating instructions are guidelines for GCO at
this facility.
13. APPENDIX L SECURITY OF EXTERIOR DOORS
2. POLICY: To insure that the exterior doors in the shop and plant
area are locked and unlocked at times indicated. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
14. APPENDIX M PLANT EQUIPMENT
2. POLICY: To insure proper operation of the plant equipment.
(These operating instructions are mandatory performance guidelines for
this facility.) These operating instructions are , guidelines for GCO at
this facility.
15. APPENDIX N ELECTRON MICROSCOPES, CTR, COMPUTER ROOM AND
ENVIRONMENTAL BOXES
2. POLICY: To insure protection for the electron microscopes,
computer room, CTR's and environmental boxes. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
16. APPENDIX O ENVIRONMENTAL BOXES
2. POLICY: To insure proper operation of boxes and setting of
alarms. (These operating instructions are mandatory performance
guidelines for this facility.) These operating instructions are
guidelines for GCO at this facility.
17. APPENDIX P AIR HANDLER
2. POLICY: To insure that air handler discharge temperatures are
maintained at proper levels. (These operating instructions are
mandatory performance guidelines for this facility.) These operating
instructions are guidelines for GCO at this facility.
18. APPENDIX Q TELEPHONE USAGE
2. POLICY: To insure proper use of the telephone. (These operating
instructions are mandatory performance guidelines for this facility."
These operating instructions are guidelines for GCO at this facility.
19. APPENDIX R VEHICLE ISSUANCE
2. POLICY: To insure that vehicles are released to properly
authorized individuals and for official use. (These operating
instructions are mandatory performance guidelines for this facility.)
These operating instructions are guidelines for GCO at this facility.
Question Before the Authority
The question is whether the Union's proposals are outside the duty to
bargain, as alleged by the Agency, because they violate section
7106(a)(2)(B) of the Statute. /5/
Opinion
Conclusion and Order: The proposals violate the Agency's right to
assign work within the meaning of section 7106(a)(2)(B) of the Statute
and are, therefore, outside the duty to bargain. Accordingly, pursuant
to section 2424.10 of the Authority's Rules and Regulations (5 CFR
2424.10 (1971)), IT IS ORDERED that the petition for review with regard
to Union Proposals 1-19 be, and it hereby is, dismissed. Reasons:
Section 1a of the Memorandum contains a general statement of purpose
which is to provide graphic control operators with general and specific
instructions applicable to their duties and responsibilities. The
instructions are mandatory performance guidelines for the employees at
the facility. Appendices A-R outline the specific instructions for the
performance of various tasks, such as maintaining equipment and
performing certain duties at specified times. The Union's proposals,
however, seek to eliminate the mandatory nature of these operating
instructions and instead require that the instructions be simply
guidelines for the performance of the various duties.
It is well established that section 7106(a)(2)(B) of the Statute
reserves to management the right to assign work, which includes the
right to assign particular duties to particular employees. Proposals
which would remove from management the discretion inherent in the right
to assign work consistently have been found to be outside the duty to
bargain. International Association of Fire Fighters, AFL-CIO, Local
F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg
Air Force Base, California, 9 FLRA No. 83 (1982); American Federation
of Government Employees, National Council of Social Security Payment
Center Locals and Social Security Administration, Office of Program
Service Centers, Baltimore, Maryland, 7 FLRA No. 139 (1982); National
Labor Relations Board Union, Local 19 and National Labor Relations
Board, Region 19, 2 FLRA 774 (1980); and American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub
nom., Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 455
U.S. 945, 102 S.Ct. 1443 (1982).
In the instant case, the operating instructions contained in the
Memorandum constitute a statement of the duties to be performed by the
graphic control operators employed at the facility. By proposing that
the operating instructions be merely guidelines, the proposals directly
interfere with the Agency's right to determine what duties must be
performed, i.e., to assign work under section 7106(a)(2)(B).
Accordingly, the proposals are outside the duty to bargain. Union
Proposal 20 (Memorandum - Section 1b)
The Union failed to provide a legible copy of its proposal to modify
section 1b of the Memorandum. Under these circumstances, there is no
proposal before the Authority for a ruling. See, e.g., Association of
Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2
FLRA 702 (1979). Accordingly, IT IS ORDERED that the Union's petition
for review with regard to the proposed change to section 1b of the
Memorandum be, and it hereby is, dismissed. Union Proposal 21
(Memorandum - Section 2)
2. RESPONSIBILITIES: The Chief of Operations or his Assistant
will insure compliance with these operating instructions. (All
Graphic Control Operators are responsible for adherence.)
Question Before the Authority
The question is whether the Union's proposal is outside the
Activity's duty to bargain, as alleged by the Agency, because it
violates section 7106(a)(2)(B).
Opinion
Conclusion and Order: The proposal violates the Agency's right to
assign work under section 7106(a)(2)(B) of the Statute. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations (5
CFR 2424.10 (1981)), IT IS ORDERED that the petition for review with
regard to Union Proposal 21 be, and it hereby is, dismissed. Reasons:
The Union proposed deleting that portion of the Memorandum which would
require all graphic control operators to be responsible for adherence to
the operating instructions contained in the Memorandum. As noted in
connection with the first 19 proposals discussed above, section
7106(a)(2)(B) of the Statute reserves to management the right to assign
work, including the right to determine what duties are to be performed.
Union Proposal 21, by removing the requirement that graphic control
operators be responsible for adhering to the operating instructions
contained in the Memorandum, would directly interfere with management's
determination with respect to the performance of those duties. The
proposal therefore conflicts with section 7106(a)(2)(B) and is outside
the duty to bargain. /6/ Union Proposal 22 (Memorandum - Section 3)
3. (Mission) Responsibilities: Graphic Control Operators are
primarily responsible for operating the Plant, Graphic Control
Center, and IBM System 7 Computer to insure that the air
conditioning, heating, refrigeration, and all other plant systems
are functioning properly. All Engineering trouble calls during
off duty hours are channeled through the Graphic Control Center.
It is the GCO's responsibility to evaluate the reported
malfunction to determine if the problem can be corrected by GCO
within 20 minutes. If it is determined that item cannot be
repaired within the 20 minute period, GCO then must decide if
immediate corrective action is required or if malfunction can be
corrected the following duty day.
Question Before the Authority
The question is whether the Union's proposal to move the foregoing
"Mission" statement contained in the Memorandum to the section entitled
"Responsibilities" (Memorandum, Section 2, supra) is within the duty to
bargain or, as alleged by the Agency, violates the right to determine
mission under section 7106(a)(1).
Opinion
Conclusion and Order: The Union's proposal to incorporate this mission
statement under a different section of the Memorandum is within the duty
to bargain. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the
Activity shall upon request (or as otherwise agreed to by the parties)
bargain over the proposal. /7/ Reasons: The Union's proposal makes no
substantive change to the provisions of the "Mission" statement as
contained in the Memorandum. Accordingly, and as it does not otherwise
appear that the proposal violates the right to determine mission under
section 7106(a)(1), the proposal is within the duty to bargain. Union
Proposals 23-30 (Memorandum - Section 4b - h)
23. GENERAL PROCEDURES:
b. (GCO) Chief of Operations will insure (that adequate) tools
and log sheets are available for the GCO so that he/she may (to)
accomplish his/her duties.
24. c. The GCO is not authorized to call any workman to duty
for overtime (except as outlined in appendices).
25. d. The GCO must read and be aware of the contents of the
appendices. The appendices contain detailed instructions that
(must) should be followed by the GCO.
26. e. In case you are confronted with a problem that is not
covered in the appendices (and) or the GCO does not have enough
information or knowledge to determine correct steps to take,
he/she will contact the (Operations Supervisor or Assistant
Operations Supervisor) appropriate designated supervisor.
27. f. GCO (will) should keep the Graphic Control Center (and
the plant) neat and clean at all times.
28. g. Graphic Control Operator should (will) not be absent
from Graphic Control Center for more than 20 minutes at a time.
(Emphasis in original, except "should.")
29. h. Graphic Control Operator (will) should eat his meals
in the Graphic Control Center while performing his duties.
30. i. Graphic Control Operators will be given two
uninterrupted rest periods during each eight hour tour of duty
from the constant attention to duty.
Question Before the Authority
The question is whether the Union's proposals violate section
7106(a)(2)(B) or section 7106(b)(1) of the Statute, /8/ as alleged by
the Agency.
Opinion
Conclusion and Order: Union Proposals 23-28 conflict with the Agency's
right to assign work within the meaning of section 7106(a)(2)(B); its
proposals 29 and 30 concern matters which are within the duty to
bargain. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the
petition for review with regard to Proposals 23-28 be, and it hereby is,
dismissed; IT IS FURTHER ORDERED that the Agency's shall upon request
(or as otherwise agreed to by the parties) bargain concerning Union
Proposals 29 and 30. /9/ Reasons: Section 4 of the Memorandum outlines
general procedures with which graphic control operators are expected to
comply. The Union's Proposals 23-28 would accomplish the following:
remove from graphic control operators the requirement of insuring that
adequate tools and logs be kept, requiring the Chief of Operations
instead, to insure their availability; eliminate the authorization for
GCO's to call workmen to duty for overtime "as outlined in appendices;"
make permissive the requirement that GCO's follow certain instructions,
substitute an unspecified supervisor for those specifically mentioned in
the Memorandum to be contacted in the event certain problems arise and
would substitute the word "or" for the word "and" thereby giving GCO's
an option in determining when to contact the supervisor; make
permissive the requirement that the Graphic Control Center be kept neat
and clean at all times, and eliminate the GCO's responsibility for
keeping the plant neat and clean; and permit rather than prohibit GCO's
leaving the Graphic Control Center for more than a specified period of
time.
In agreement with the Agency, the Authority finds that Union
Proposals 23-28 would directly interfere with the right to assign work
by: eliminating the performance of various duties by GCO's as
prescribed by management, such as insuring that adequate tools and logs
are kept and making calls to workmen under certain circumstances for
overtime purposes; modifying the assignment of work, such as which
supervisor is designated to receive problem calls; and eliminating the
mandatory nature of certain duties, such as following instructions,
keeping physical locations neat and clean and not being absent from a
particular work area for more than a prescribed period of time.
Consequently, such proposals are outside the duty to bargain. See,
e.g., Vandenberg Air Force Base, 9 FLRA No. 83.
We turn next to Union Proposals 29 and 30. The former would make
permissive the requirement that graphic control operators eat their
meals in the Graphic Control Center while performing their duties. The
latter would require management to give GCO's two uninterrupted rest
periods during each eight hour tour of duty.
The statutory authority for granting meal periods is found in 5
U.S.C. 6101 which pertains to the establishment of the basic 40-hour
workweek for full-time employees. /10/ More specifically, 5 U.S.C.
6101(a)(3)(F) permits agency heads to grant breaks of up to one hour in
the basic workday. The record is unclear as to whether the employees
here involves have been granted a "duty-free," non-compensable meal
period pursuant to this statutory provision or whether they remain in a
duty status during their entire tour of duty. In either event, the
Union's proposal that GCO's "should" eat their meals in the Graphic
Control Center while performing their duties does not appear to be
inconsistent with the statutory authority governing meal periods nor do
we find it to be inconsistent with management's rights under the
Statute. In this latter regard, the Agency claims, without further
specificity, that the proposal violates the Agency's right to assign
work under section 7106(a)(2)(B) to the extent that "a shift is made
from mandatory responsibilities of the GCO . . . to permissive
responsibility . . . ." Contrary to the Agency's contention, the
Authority finds that the proposal would not violate management's right
to assign work. The language of the proposal itself supports such a
conclusion. By requiring that employees "should" eat their meals in the
Graphic Control Center while performing their duties, the proposal
recognizes that there would be occasions when management would deem it
necessary to assign work to employees during their meal periods.
Accordingly, to the extent that the Union's proposal would neither
prevent management from assigning duties to employees during their meal
periods nor relieve employees of the responsibility to perform any work
scheduled during that time, we find that Union Proposal 29 is within the
Agency's duty to bargain. /11/
The authority to prescribe regulations regarding the conduct of
agency employees is contained in 5 U.S.C. 301, /12/ which authority
extends to the granting of rest periods. /13/ Union Proposal 30 is that
GCO's be given two uninterrupted rest periods during each eight hour
tour of duty from the constant attention to duty. The Agency claims
that adherence to the proposal would require an increase in staffing
which is a matter negotiable solely at the election of the Agency
pursuant to section 7106(b)(1) of the Statute and concerning which the
Agency has elected not to bargain. For the following reasons, the
Agency's contention cannot be sustained.
The Authority has previously held that proposals are negotiable at
the election of an agency under section 7106(b)(1) only if the language
of the proposals explicitly relates to the numbers, types, and grades of
employees or positions assigned to a tour of duty so as to come within
the literal language of that section or if the agency has demonstrated
that the proposals, by their direct or integral relationship to the
numbers, types and grades of employees or positions assigned to a tour
of duty, would be determinative of such numbers, types, or grades.
American Federation of Government Employees, AFL-CIO, Local 2875 and
Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, Southeast Fisheries Center, Miami
Laboratory, Florida, 5 FLRA No. 55 (1981); National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 927 (1979). The proposal here does not on its face
explicitly relate to the numbers, types, and grades of employees or
positions assigned to a tour of duty nor has the Agency demonstrated
such a direct or integral relationship. Rather, the proposal would
provide for the granting of rest periods, a matter within the discretion
of an agency to grant and therefore subject to negotiation. /14/ Of
course, inasmuch as employees would remain in a duty status during their
rest periods, /15/ management would retain the right to assign work to
employees under section 7106(a)(2)(B) during such rest periods
notwithstanding the wording of the proposal which provides for
"uninterrupted" rest periods. The Union has indicated no intent that
management be prohibited from assigning work during such periods and, in
this regard, in its response to the Agency's statement of position, the
Union referred to its Proposal 30 as an attempt to negotiate two rest
periods but no longer described them as being "uninterrupted."
Accordingly, we find Union Proposal 30 to be within the Agency's duty to
bargain. Union Proposal 31 (Appendix A - Service Calls)
1. PURPOSE: To provide the Graphic Control Operator and
Mechanics with instructions for processing (trouble) emergency
calls other than normal duty hours.
Question Before the Authority
The question is whether the Union's proposed change in terminology
from "trouble" to "emergency" is within the duty to bargain.
Opinion
Conclusion and Order: The proposal is not properly before the Authority
for a ruling. Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED
that the petition for review with regard to Proposal 31 be, and it
hereby is, dismissed. Reasons: The record indicates that the Union
never requested or received an agency allegation of nonnegotiability
with respect to this proposal, as required by section 7117(c)(1) of the
Statute. Under these circumstances, the proposal is not properly before
the Authority for decision. See Association of Civilian Technicians and
State of Georgia, Department of Defense, Military Division, Atlanta,
Georgia, 3 FLRA 686 (1980). Union Proposals 32-36 (APPENDIX B -
EMERGENCY GENERATOR)
4. General:
32. a. The emergency generator will be test run each Monday
from 6 A.M. to 7:45 A.M. by the Graphic Control Operator and other
designated Engineering Personnel.
33. b. When a holiday falls on Monday the generator will be
run on Tuesday but only for one hour from 6 A.M. to 7 A.M. If the
holiday runs through both days, it will not be run that week.
34. c. Graphic Control Operator (will) should take reading at
approximately 6 A.M. (again) at 7:00 A.M. and (a final reading) at
7:40 A.M.
35. (e. In addition to check list items, the Graphic Control
Operator will record the oil and water temperatures in the remarks
section of the VA Form 10-77 (671) Feb. 1976 for his particular
shift and record generator run on the daily log book.)
36. (f. Each day forward the daily check list to operations
and every Monday forward the weekly test run sheet along with the
daily check list to Operations.)
Question Before the Authority
The question is whether the Union's proposals are outside the duty to
bargain, as alleged by the Agency, because they violate section
7106(a)(2)(B) of the Statute.
Opinion
Conclusion and Order: The proposed changes violate the Agency's right
to assign work under section 7106(a)(2)(B) of the Statute and are,
therefore, outside the duty to bargain. Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10
(1981)), IT IS ORDERED that the petition for review with regard to Union
Proposals 32-36 be, and it hereby is, dismissed. Reasons: As
previously stated herein, proposals which directly interfere with the
Agency's right to assign work pursuant to section 7106(a)(2)(B) are
outside the scope of bargaining. /16/ Union Proposals 32-36 each would
have this impermissible effect: Proposal 32 would require assigning
responsibility for administering a test run to additional engineering
personnel besides the graphic control operator; Proposal 33 would
eliminate the assigned task to test run the emergency generator in the
event a holiday occurs on both Monday and Tuesday; Proposal 34 would
make permissive the mandatory requirement that the GCO take equipment
readings; and Proposals 35-36 would eliminate the duties of recording
certain types of information on prescribed forms and forwarding various
other forms to a designated office which management had prescribed for
GCO's. Accordingly, these proposals are outside the duty to bargain.
Union Proposals 37-39 (Appendix D - Fire Alarm System)
37. 4. GENERAL:
a. During a smoke notification or fire alarm, the operator
will return to the Graphic Control Center where he will remain,
unless the emergency is in the Control Room.
38. b. He will maintain radio contact with the hospital
police and the Chief of the fire fighting crew. The GCO will be
informed in writing as to who is the Chief of the Fire Fighting
Crew. The Chief of the Fire Fighting Crew will be issued radio.
39. e. Reset the master fire alarm panel in the Graphic
Control Center after the all clear has been received from the
police and after the police have reset the zone panels.
Question Before the Authority
The question is whether the Union's proposals are within the Agency's
duty to bargain, or violate section 7106(a)(2)(B) of the Statute, as
alleged by the Agency.
Opinion
Conclusion and Order: Union Proposal 37 and the first sentence of Union
Proposal 38 are within the duty to bargain; the last sentence of
Proposal 38 and Proposal 39, however, do not concern conditions of
employment of unit employees under the Statute. Accordingly, pursuant
to section 2424.10 of the Authority's Rules and Regulations (5 CFR
2424.10 (1981)), IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 37
and the first sentence of Proposal 38; /17/ IT IS FURTHER ORDERED that
the petition for review with regard to the last sentence of Proposal 38
and all of Proposal 39 be, and it hereby is, dismissed. Reasons: The
Authority has stated that proposals to require management to consider
health and safety factors in assigning work are not inconsistent with
the Statute but proposals which would actually preclude the assignment
of work are nonnegotiable. National Federation of Federal Employees,
Local 1167 and Department of the Air Force, Headquarters, 31st Combat
Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105
(1981) and International Association of Fire Fighters Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 (1980). Here, Proposal 37 is,
on its face, concerned with the safety of graphic control operators in
the event of a fire emergency in the Graphic Control Center, and would
not prevent the Agency from assigning work or, insofar as appears from
the record, otherwise violate management rights. That is, the proposal
is not concerned with the assignment of work. It merely would permit
employees to whom work had been assigned to delay returning to the
worksite when it is the location of a fire emergency. Under these
circumstances, the Authority finds this proposal is within the duty to
bargain.
With regard to Union Proposal 38, the Union proposes: (1) that the
GCO be informed in writing as to who occupies the position of chief of
the fire fighting crew; and (2) that the chief of the fire fighting
crew be issued a radio. The Agency has made no specific arguments
concerning this proposal. In the Authority's view, the requirement to
inform the GCO in writing as to who occupies the position of chief of
the fire fighting crew, on its face, constitutes a negotiable procedure
within the meaning of section 7106(b)(2) of the Statute. /18/ In this
connection, the proposal would not interfere with any management right
but merely would make clear the name of the official who management has
designated to be contacted by GCO's. Accordingly, the proposal to add
this requirement to section 4b of the Memorandum is within the duty to
bargain.
The portion of Union Proposal 38, however, which would require the
Agency to provide a radio to the chief of the fire fighting crew, as
well as Union Proposal 39, are outside the duty to bargain because
neither is directly concerned with conditions of employment of members
of the bargaining unit. /19/ Union Proposals 40-44 (Appendix E -
Graphic Control Shift and Plant Logs)
40. 4. GENERAL
a. The Graphic Control shift log book is an official record
(and completed logs will be maintained in accordance with VA
maintenance of records.) All entries will be made using black or
blue ballpoint pens.
41. b. Only items of an official nature will be annotated in
the logs. This is a shift record or journal of occurrences
(sic),
experiences, observations, and transactions. (Under no
circumstances will unofficial personal comments be entered in the
log.)
42. c. Daily log sheet for the air conditioning plant VA Form
10-17, a new log sheet will be placed in use each midnight. All
entries on this sheet will be on the hour or as near the hour as
time permits. Within (fifteen minutes) a reasonable amount of
time past the hour you should be taking the plant readings. If
for any reason you miss a reading annotate the fact and explain
why the reading was not accomplished.
43. d. The air handler temperature equipment read out log VA
Form 7051c. A new log sheet will be placed in use each shift.
Two (2) discharge temperature readings of air handlers will be
made and recorded on each shift. These readings will be taken and
recorded (in the 1st and 4th hour of the) twice a shift.
Additional items to be recorded on the sheet are operator name,
date, shift and time of reading.
44. g. Refrigeration logs. Temperature reading of research
CTR, Blood Bank, Morgue, and Kitchen walk-in will be made on each
shift other than normal duty hours. This temperature check will
be made twice during (the second hour and fifth hour of) your tour
of duty. Items to be recorded are date, time, box or room number,
temperature and operator's initial.
Union Proposal 45 (Appendix F - Water Softeners /20/ )
4. GENERAL:
d. Each operator will take a water hardness test (within two
hours) as soon as time permits after assuming shift
responsibility. The results of this test will be annotated in the
shift log.
Question Before the Authority
The question is whether the Union's proposals are outside the duty to
bargain because they violate section 7106(a)(2)(B) of the Statute or
because the Agency has elected not to bargain them under section
7106(b)(1).
Opinion
Conclusion and Order: Union Proposals 40-45 are outside the duty to
bargain. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the
petition for review with regard to these Union Proposals be, and it
hereby is, dismissed. Reasons: Union Proposals 40 and 41 would
eliminate the requirements that employees maintain completed logs in
accordance with "VA maintenance of records" and refrain from inserting
unofficial personal comments. In agreement with the Agency the
Authority finds these proposals would directly interfere with the right
to determine how certain logs will be maintained, i.e., the "method" by
which particular work will be performed. This involves a matter
negotiable solely at the election of the Agency under section 7106(b)(1)
and concerning which the Agency has elected not to bargain.
Accordingly, this matter is not within the duty to bargain. National
Treasury Employees Union and Internal Revenue Service, 6 FLRA No. 98
(1981) (Union Proposals III, IV and V).
Union Proposals 42-45 all pertain to duties which are required to be
performed at specified times. The Union has proposed to change when
such duties will be performed. Such proposals, in effect, would change
the requirements of a duty assignment in violation of management's right
"to assign work." /21/ Accordingly, the Union proposals are outside the
duty to bargain under section 7106(a)(2)(B) of the Statute. Union
Proposals 46-51 (Appendix H - (Office and) Machine Room Housekeeping)
46. 1. PURPOSE: To provide the Graphic Control Operator with
instructions for housekeeping (duties with their area) involving
the Machine Room.
47. 3. RESPONSIBILITY: The 5th Graphic Control Operator is
responsible for (cleaning the Graphic Control Center and) keeping
the machine room neat and clean at all times. (This cleaning
consists of sweeping and mopping floors, cleaning of desk, table
surface areas and dusting of all office equipment.)
48. 4. GENERAL:
a. (The duty operator will make sure) GCO will insure that the
Graphic Control Center is clean at all times.
49. b. The trash cans will be emptied on each shift by
Building Management personnel.
50. c. Each day on the 12:00 p.m. (sic) (midnight) to 8:00
A.M. shift, the Graphic Control Center will be cleaned. The GCO
operator will contact housekeeping to accomplish this. The
cleaning will consist of sweeping and mopping floors, cleaning the
desk, cadenza, (sic) table surface area and dusting of all the
office equipment and emptying trash.
51. (e. The duty operator will make sure the plant is clean
at all times, especially no dirty rags, tools or cups setting on
tables or laying around.)
Question Before the Authority
The question is whether the Union's proposals are within the duty to
bargain or violate section 7106(a)(2)(B) of the Statute, as alleged by
the Agency.
Opinion
Conclusion and Order: The Union's proposed change with regard to the
Title of the Appendix, and Union Proposals 46, 47 and 49-51 are
violative of section 7106(a)(2)(B) of the Statute and, therefore, are
outside the duty to bargain. Accordingly, pursuant to section 2424.10
of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS
ORDERED that the petition for review with regard to these proposals be,
and it hereby is, dismissed. However, Union Proposal 48 does not
conflict with any management rights and, therefore, is within the duty
to bargain. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the
Agency shall upon request (or as otherwise agreed to by the parties)
bargain concerning Union Proposal 48. /22/ Reasons: Union Proposals
46, 47 and 49-51 would directly interfere with the right to assign work.
More specifically, in the title of Appendix H, Proposals 46 and 47, the
Union has proposed to eliminate the assignment of housekeeping duties in
the Graphic Control Office to the graphic control operator;
additionally, Proposal 47 would require only the "5th Graphic Control
Operator" to perform a certain duty rather than any Graphic Control
Operator as provided for in the Memorandum and would eliminate specific
cleaning duties to be performed; in Proposals 49, 50 and 51, the Union
has proposed the reassignment of various duties to Building Management
personnel or the housekeeping staff, and the elimination of the
requirement that the duty operator insure that the plant is clean at all
times. By thus directly interfering with management's right to assign
work, the proposals conflict with section 7106(a)(2)(B) of the Statute
and are, therefore, outside the duty to bargain. See Vandenberg Air
Force Base, 9 FLRA No. 83.
Union Proposal 48, however, would simply substitute the term "GCO"
for the term "duty operator." Insofar as appears from the record, the
terms GCO and duty operator are interchangeable and refer to the same
type of employee. Accordingly, the proposal does not conflict with any
management assignment of work, as alleged by the Agency and is within
the duty to bargain. Union Proposals 52-53 (Appendix L - Security of
Exterior Doors /23/ )
52. 4. GENERAL:
a. The electro/magnetic locking exterior doors will be opened
only for emergencies or to accomplish official duties. If the
doors are opened, the operator will record in the log the date,
time, and purpose of opening the doors. An extract of the log
will be forwarded to the Engineering Service timekeeper each day
by the Supervisors.
53. d. The operator will unlock these doors Monday thru
Friday between 6(7):00 A.M. thru 7:30 A.M.
Question Before the Authority
The question is whether the Union's proposals violate section
7106(a)(2)(B) of the Statute, as alleged by the Agency.
Opinion
Conclusion and Order: Union Proposals 52 and 53 are outside the duty to
bargain under section 7106(a)(2)(B) of the Statute. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations (5
CFR 2424.10 (1981)), IT IS ORDERED that the petition for review with
regard to Union Proposals 52 and 53 be, and it hereby is, dismissed.
Reasons: Union Proposal 52 would eliminate the requirement that GCO's
forward an extract of the log to the Engineering Service timekeeper each
day and, instead, would require that supervisors perform such function.
By eliminating the assignment of a particular task to GCO's, the
proposal violates the Agency's right to assign work within the meaning
of section 7106(a)(2)(B) and it is, therefore, outside the duty to
bargain. Vandenberg Air Force Base, 9 FLRA No. 83.
Union Proposal 53 would permit GCO's to unlock certain doors between
6:00 A.M. and 7:30 A.M. whereas the Agency prescribes that the interval
of time within which this task must be performed is 7:00-7:30. The
Agency has the right under section 7106(a)(2)(B) to determine when such
work will be performed. International Association of Fire Fighters,
Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (Union
Proposal II). Accordingly, the proposal is outside the duty to bargain.
Union Proposals 54-55 (Appendix M - Plant Equipment)
54. 4. GENERAL:
a. The medical vacuum pumps, dental air compressor, medical
air compressor, central air compressor will be alternated each
week. The responsibility for the change will be the (4-12 shift)
5th Operator each Friday.
55. b. The dental vacuum pump will be started each morning,
Monday thru Friday, at 7:30 A.M. and turned off at 5(6):00 P.M.
Question Before the Authority
The question is whether the Union's proposals are outside the duty to
bargain because they violate section 7106(a)(2)(B), as alleged by the
Agency.
Opinion
Conclusion and Order: Union Proposals 54 and 55 are outside the duty to
bargain under section 7106(a)(2)(B) of the Statute. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations (5
CFR 2424.10 (1981)), IT IS ORDERED that the petition for review with
regard to the Union's proposals be, and it hereby is, dismissed.
Reasons: Union Proposal 54 provides that employees on a particular
shift will be responsible for alternating various pumps and compressors
while the Union has proposed that the "5th Operator" maintain this
responsibility. The Union's proposal is outside the duty to bargain
under section 7106(a)(2)(B) because it would require the Agency to
assign work to a particular employee-- the 5th Operator-- and would
preclude the assignment of such work to any other employee. As the
Authority concluded in Wright-Patterson Air Force Base, 2 FLRA 604, 631
with regard to an agency's right to assign work under section
7106(a)(2)(B), "(t)he right to assign work includes discretion as to the
particular employee to whom it will be assigned." As the Union's
proposal would remove from agency management the discretion to determine
which employee will be assigned various duties the proposal violates
section 7106(a)(2)(B).
Union Proposal 55 would alter the time at which the dental vacuum
pump is to be turned off, from 6:00 P.M. to 5:00 P.M. As previously
stated in connection with Proposal 53, a proposal to change management's
determination of when a task must be performed would violate the
Agency's right to assign work under section 7106(a)(2)(B). Accordingly,
this matter is not within the duty to bargain. Union Proposal 56
(Appendix N - Electron Microscopes, CTR, Computer Room and Environmental
Boxes)
4. GENERAL:
a. The Graphic Control Operator will notify Research personnel
when there is a water or electrical failure in the hospital.
b. The Graphic Control Operator will notify Laboratory
personnel when there is a water or electrical failure in the
hospital.
Question Before the Authority
The question is whether Union Proposal 56 is within the scope of
bargaining, or violates section 7106(a)(2)(B) of the Statute, as alleged
by the Agency.
Opinion
Conclusion and Order: The proposal is within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall
upon request (or as otherwise agreed to by the parties) bargain
concerning the proposal. /24/ Reasons: Among the duties outlined in
Appendix N, GCO's are required to notify research and laboratory
personnel in the event of a water or electrical failure in the hospital.
The Union's proposal merely would require the Agency to provide GCO's
with a current listing of names and telephone numbers of those personnel
to be notified. In the Authority's view such a proposal, on its face,
constitutes a negotiable procedure under section 7106(b)(2) of the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 1858 and Department of the Army, U.S. Army Missile Command,
Redstone , Arsenal, Alabama, 10 FLRA No. 74 (1982) (Union Proposal 2,
second sentence). Therefore, it is within the duty to bargain. Union
Proposal 57 (Appendix P - Air Handler)
4. GENERAL:
a. The operator will take two (the) discharge read out
temperatures of such air handler during (the first and fourth hour
of) his tour of duty. These readings will be recorded on the data
sheet and turned in to the Operations Office each morning.
Question Before the Authority
The question is whether the proposal is outside the duty to bargain
under section 7106(a)(2)(B), as alleged by the Agency.
Opinion
Conclusion and Order: Union Proposal 57 conflicts with the Agency's
right under section 7106(a)(2)(B) to assign work. Accordingly, pursuant
to section 2424.10 of the Authority's Rules and Regulations (5 CFR
2424.10 (1981)), IT IS ORDERED that the petition for review with regard
to this proposal be, and it hereby is, dismissed. Reasons: In
agreement with the Agency, the Authority finds that by changing the
requirement that operators take discharge read out temperatures at
particular times during a tour of duty, this proposal would directly
interfere with management's right to assign work in like manner as Union
Proposals 53 and 55 and is outside the duty to bargain under section
7106(a)(2)(B). Philadelphia Naval Shipyard, 3 FLRA 438. Union
Proposals 58-60 (Appendix Q - Telephone Usage)
58. 1. PURPOSE: To provide (Graphic Control Operator) all
engineering personnel with instructions in using and controlling
the telephone in the Graphic Control Room.
59. 3. RESPONSIBILITY: The (Graphic Control Operator) Chief
of Operations is responsible for (complying with the provisions of
these instructions) insuring that all employees comply.
60. 4. GENERAL:
b. (The operator) Engineering Personnel may use the phone for
personal emergency calls but this call should be limited to two or
three minutes.
Question Before the Authority
The question is whether the Union's proposals violate section
7106(a)(2)(B) of the Statute, as alleged by the Agency.
Opinion
Conclusion and Order: Union Proposal 60 is within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall
upon request (or as otherwise agreed to by the parties) bargain
concerning Union Proposal 60. /25/ Union Proposals 58 and 59, however,
conflict with the Agency's right to assign work under section
7106(a)(2)(B). Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED
that the petition for review with regard to Union Proposals 58 and 59
be, and it hereby is, dismissed. Reasons: Union Proposal 58 would
require that instructions on the use and control of the telephone in the
Graphic Control Room be provided to all engineering personnel instead of
only to GCO's. This proposal would directly interfere with management's
right to assign work under section 7106(a)(2)(B) regardless of whether
it was intended to require that employees other than GCO's use and
control the telephone, /26/ or whether it was intended to require the
Agency to provide training in the use of the telephone to employees
other than GCO's. /27/ Union Proposal 59 would also directly interfere
with the right to assign work by eliminating the GCO's responsibility
for complying with the operating instructions contained in the Appendix.
As to Union Proposal 60, which would permit engineering personnel
rather than solely the operator to use the telephone for personal
emergency calls, the Agency has not demonstrated and it does not
otherwise appear that the Proposal is in any manner barred from
negotiation. Under these circumstances, we find the proposal to be
within the duty to bargain. Issued, Washington, D.C., June 2, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency's request to dismiss the Union's petition for review
as untimely filed is denied. The Union's petition for review was filed
within the time limits prescribed by sections 2424.3 and 2429.22 of the
Authority's Rules and Regulations after service upon the Union of a
second unsolicited allegation of nonnegotiability by the Agency. See
International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and
Department of the Treasury, Bureau of Engraving and Printing,
Washington, D.C., 10 FLRA No. 39 (1982).
/2/ The Authority requested additional information from the parties
pursuant to sections 2424.8 and 2429.26 of the Authority's Rules and
Regulations. However, as the parties did not file their submissions
within the time limit prescribed by the Authority, such submissions were
not considered herein.
/3/ For convenience and clarity, the Union's proposed modifications
to the provisions and changes will be set forth in the following manner:
the Union's proposed modifications to the provisions of the Memorandum
will be underscored; those portions of the Memorandum the Union seeks
to delete will be enclosed in brackets.
/4/ The Union proposed other minor nonsubstantive changes to 3 of the
19 sections which it will be unnecessary to pass upon in view of our
finding herein.
/5/ Section 7106(a)(2)(B) of the Statute provides, in pertinent part,
as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(B) to assign work . . . .
/6/ In view of this decision the Authority finds it unnecessary to
reach the Agency's contention regarding section 7106(b)(1) of the
Statute.
/7/ In so finding, the Authority makes no judgment as to the merits
of the proposal.
/8/ Section 7106(a)(2)(B) is set forth at note 5, supra. Section
7106(b)(1) of the Statute provides, in pertinent part, as follows:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/9/ In so finding, the Authority makes no judgment as to the merits
of the proposals.
/10/ 5 U.S.C. 6101(a) provides, in pertinent part, as follows:
Sec. 6101. Basic 40-hour workweek; work schedules;
regulations
. . . .
(2) The head of each Executive agency, military department, and
of the government of the District of Columbia shall--
(A) establish a basic administrative workweek of 40 hours for
each full-time employee in his organization; and
(B) require that the hours of work within that workweek be
performed within a period of not more than 6 of any 7 consecutive
days.
(3) Except when the head of an Executive agency, a military
department, or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization, that--
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(C) the working hours in each day in the basic workweek are the
same;
(D) the basic nonovertime workday may not exceed 8 hours;
(E) the occurrence of holidays may not affect the
designation of the basic workweek; and
(F) breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
/11/ We note further that nothing in the proposal would preclude the
staggering of meal periods to ensure that the Graphic Control Center is
manned at all times.
/12/ 5 U.S.C. 301 provides as follows:
Sec. 301. Departmental regulations
The head of an Executive department or military department may
prescribe regulations for the government of his department, the
conduct of its employees, the distribution and performance of its
business, and the custody, use, and preservation of its records,
papers, and property. This section does not authorize withholding
information from the public or limiting the availability of
records to the public.
/13/ Accord, decisions of the Comptroller General in B-166304 (April
7, 1969) and B-190011 (December 30, 1977).
/14/ See National Treasury Employees Union, Chapter 6 and Internal
Revenue Service, New Orleans District, 3 FLRA 748 (1980).
/15/ See Decisions of the Comptroller General referred to in n. 13,
supra.
/16/ See p. 6, supra.
/17/ In so finding, the Authority makes no judgment as to the merits
of the proposals.
/18/ Section 7106(b)(2) of the Statute provides, in pertinent part,
as follows:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section . . . .
/19/ See American Federation of Government Employees, AFL-CIO, Local
2 and Department of the Army, Military District of Washington, 4 FLRA
No. 60 (1980) and American Federation of Government Employees, National
Council of EEOC Locals No. 216, AFL-CIO and Equal Employment Opportunity
Commission, Washington, D.C., 3 FLRA 504 (1980).
/20/ The Union originally proposed deletion of sections 4f, g and h
of Appendix F of the Memorandum. However, the Union subsequently
indicated that it would "agree to management's 4f, g and h." Therefore
insofar as it appears from the record that these proposals are no longer
in dispute, the Authority shall not consider them further, herein.
/21/ See National Labor Relations Board, 2 FLRA 775 and
Wright-Patterson Air Force Base, 2 FLRA 604.
/22/ In so finding, the Authority makes no judgment as to the merits
of the proposal.
/23/ The Union also proposed a minor language change to section 3 of
Appendix L. Insofar as appears from the record, however, no dispute
exists as to such proposal and the Authority shall not consider it
further, herein.
/24/ In so deciding, the Authority makes no judgment as to the merits
of the proposal.
/25/ In so finding, the Authority makes no judgment as to the merits
of the proposal.
/26/ Wright-Patterson Air Force Base, 2 FLRA 604 (Proposal XVI).
/27/ See National Association of Air Traffic Specialists and
Department of Transportation, Federal Aviation Administration, 6 FLRA
No. 106 (1981) (Proposals I-III).