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12:0270(62)NG
The decision of the Authority follows:
12 FLRA No. 62
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 541
Union
and
VETERANS ADMINISTRATION
HOSPITAL, LONG BEACH,
CALIFORNIA
Agency
Case No. O-NG-275
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 concerns the
negotiability of a single Union proposal. Upon careful consideration of
the entire record, including the parties' contentions, the Authority
makes the following determinations.
Union Proposal
Article XIII - Incentive Awards
A. The employer will develop an incentive awards committee,
made up of equal members from management and the Union. It will
be the responsibility of this committee to design, develop, and
administer the Incentive Awards Program for this Medical Center.
B. The committee will encourage supervisors at all levels to
utilize the Incentive Awards Program to recognize employees they
consider deserving such recognition. The committee will
investigate services which do not participate in the program.
C. The committee will review all nominations for incentive
awards and through open deliberations select those nominees they
feel deserving of the award. The committee will forward these
names to the Director for final approval. Should the Director
disapprove any of the committee recommendations, the
recommendation will be returned to the committee with a complete
explanation for the disapproval.
D. It will be the committee's responsibility to insure that
the Incentive Awards Program is administered equally among all
employees of the Medical Center.
E. All employees who are nominated for an Incentive Award,
will receive a letter, informing them of their nomination, and
thanking them for outstanding contributions. This letter will be
issued by the committee and signed by the chairperson.
F. The provisions of this article do not preclude Service
Chiefs from establishing an internal recognition program for
employees of their service.
Questions Before the Authority
The questions are whether the Union's proposal is outside the duty to
bargain because it extends to nonunit employees or, in the alternative,
whether it is inconsistent with law or Government-wide regulation.
Opinion
Conclusion and Order: The Union's proposal extends to nonunit employees
and, to that extent, it is not within the Agency's duty to bargain under
the Statute. To the extent the proposal would apply to unit employees,
it is within the duty to bargain since it is not inconsistent with law
or Government-wide regulation. Accordingly, pursuant to section 2424.10
of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS
ORDERED that the Agency shall upon request (or as otherwise agreed to by
the parties) bargain on this proposal to the extent that it applies to
unit employees. /1/ Reasons: The Union represents only one of several
bargaining units at the Medical Center and states its intent that the
proposal be applied only to the unit it represents. The language of the
proposal, however, would establish an incentive awards committee to
administer the incentive awards program for the entire Medical Center,
which would include employees who are not within the unit represented by
the Union (see, in particular, sections A and D of the proposal). It
is, of course, clear that an agency has no obligation to bargain with a
union over conditions of employment of employees not in the bargaining
unit represented by that union. Service Employees' International Union,
AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA No. 81 (1982).
However, insofar as the proposal herein pertains to the conditions of
employment of employees represented by the Union, which could be within
the duty to bargain, it is necessary to consider further whether the
proposal is consistent with applicable law and regulations.
The proposal would require the establishment of a joint
labor-management committee to "design, develop, and administer" an
incentive awards program. As to the granting of incentive awards under
such a program, the committee would have the limited authority to make
recommendations subject to final approval by the Director of the Medical
Center.
The Agency concedes that the establishment of a joint
labor-management committee to administer the incentive awards program
and make recommendations as to the granting of such awards is a matter
which is within its discretion under applicable law and regulation, but
contends that such discretion is not subject to the duty to bargain. To
the extent that an agency has discretion with respect to a matter
affecting the conditions of employment of its employees, that matter is
within the duty to bargain. National Treasury Employees Union, Chapter
6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1981).
See also American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2477; American Federation of State, County and Municipal
Employees, AFL-CIO, Local 2910; Congressional Research Employees
Association; and Law Library of Congress United Association of
Employees and Library of Congress, Washington, D.C.; American Federation
of State, County and Municipal Employees, AFL-CIO, Local 2910 and
Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982), enforced
sub nom. Library of Congress v. Federal Labor Relations Authority, 699
F.2d 1280 (D.C. Cir. 1983). Therefore, the Authority finds, contrary to
the Agency, that the disputed proposal is within the scope of
bargaining.
The Agency also contends that the proposal would require it to
negotiate on the "methods" and "means" of performing its work, matters
which are negotiable at the election of the Agency under section
7106(b)(1) of the Statute. /2/ Contrary to the Agency, the proposal
would not require it to negotiate as to the method it would use to
perform its work, i.e., the way in which it provides medical services to
the nation's veterans. Cf. 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)
(flexible work schedule not a "method" of performing work). Nor does
the proposal concern the means, i.e., the "tools," "devices," or
"instrumentalities" by which the Agency will do its work. See American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 4 FLRA No. 52 (1981) (firearms held to be a "means" of
performing work). Rather, the proposal concerns the procedures
management will follow in giving incentive awards to employees. In this
regard, the proposal is not materially distinguishable from Union
Proposal 6 in American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA No. 34 (1981), wherein the Authority held that a
proposal to establish a committee to make recommendations regarding the
operation of an agency's performance appraisal system was negotiable as
a procedure. Thus, for the reasons set forth in Federal Deposit
Insurance Corporation, the proposal at issue herein concerns a procedure
and is within the duty to bargain.
The remaining argument of the Agency is that by requiring it to
negotiate regarding Union membership on the committee and, thus,
concerning the assignment of unit employees to tasks associated with the
committee, the proposal is inconsistent with its right to assign work
under section 7106(a)(2)(B) of the Statute. In support of this
contention, the Agency cites the Authority's decision in American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 622-3
(1980), enforced as to other matters sub nom. Department of Defense v.
FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), wherein the Authority
determined that a proposal requiring the agency to select at least half
of its Equal Employment Opportunity counselors from among union nominees
directly interfered with the agency's right to assign work since it
determined which employee should be assigned those duties.
However, the proposal in the instant case is distinguishable. In
particular, the duties associated with being an Equal Employment
Opportunity counselor, as in Wright-Patterson, are official duty
assignments prescribed under regulation. /3/ In contrast, under the
proposal herein, participation of Union representatives on an incentive
awards committee would not concern official, prescribed duties.
Instead, consistent with the purposes of the Statute, the proposal would
authorize a procedure for union participation in the administration of a
program directly concerning a condition of employment and would not
involve the assignment of "work" within the meaning of section
7106(a)(2)(B) of the Statute. /4/
Of course, a proposal which would provide for Union representatives
on such a committee might under different circumstances affect the
assignment of work to those employees. In this regard, a proposal which
would have established an absolute prohibition against the assignment of
work to employees when such assignment would have conflicted with the
employees' participation on a management review study was held to
directly interfere with management's right to assign work under section
7106(a)(2)(B). National Association of Government Employees, Local
R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss,
Texas, 9 FLRA No. 145 (1982) (Union Proposal 2). However, the proposal
herein does not concern what accommodations, if any, might be necessary
in the scheduling of work. /5/ Issued, Washington, D.C., July 7, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In deciding that the proposal is within the duty to bargain to
the extent it applies to unit employees, the Authority makes no judgment
as to its merits.
/2/ Section 7106(b)(1) provides 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 technology,
methods, and means of performing work(.)
/3/ As to the Equal Employment Opportunity Counselors, FPM Letter No.
713-37 (May 20, 1977) provides, in relevant part, as follows:
3. Official EEO duties and responsibilities assigned to
employees on a collateral basis must be described in the official
position description that covers the position the employee
occupies(.)
. . . .
a. Definition. EEO collateral assignments are official duties
and responsibilities assigned to any employee in addition to the
primary duties and responsibilities of the position the employee
occupies.
/4/ Cf. American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA No. 34 (1981) (Union Proposal 8) (proposal concerning
official time for negotiable labor-management relations activity is
within the duty to bargain under section 7131(d) of the Statute).
/5/ With regard to such "accommodations," see American Federation of
Government Employees, AFL-CIO, New Jersey Council of District Office
Locals and Department of Health and Human Services, Social Security
Administration District Office Operations, 7 FLRA No. 60 (1981).