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22:0136(13)NG
The decision of the Authority follows:
22 FLRA No. 13
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2059
Union
and
U.S. DEPARTMENT OF JUSTICE
U.S. ATTORNEY'S OFFICE
SOUTHERN DISTRICT OF NEW YORK
NEW YORK, NEW YORK
Agency
Case No. 0-NG-1125
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is 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 two provisions of a negotiated
agreement disapproved by the Agency head pursuant to section 7114(c) of
the Statute.
II. Provisions
The dispute concerns the underlined portion of provision 1 and all of
provision 2:
Provision 1
(Article XXX, Section 2)
Health and Safety Committee: The Employer and the Union shall
each designate a minimum of two (2) members to serve on the Safety
and Health Committee. The Safety and Health Committee shall
perform the following functions:
a. Investigate, report and recommend corrective action for
unsafe working conditions referred to the committee.
b. Meet quarterly.
Provision 2
(Article III, Section 13)
Emergency: A situation which imposes sudden, immediate
requirements for the Employer as a result of natural phenomena or
other circumstances beyond the Employer's reasonable control or
ability to anticipate.
A. Positions of the Parties
1. Health and Safety Committee
The Agency argues that by requiring it to (1) appoint two members to
the Committee, and (2) assign the investigation of unsafe working
conditions to the Committee, the provision is inconsistent with its
reserved management rights under section 7106(a)(2)(A) and (B) of the
Statute to assign employees and assign work. The Agency also contends
that the Committee could hamper investigations by others, including
outside experts, so as to interfere with its section 7106(a)(1) right to
determine its internal security practices.
The Union asserts that the provision neither requires the appointment
of particular management employees to the Committee nor precludes the
Agency from assigning investigatory responsibilities to persons who are
not on the Committee. Thus, the Union maintains that the provision is
not inconsistent with the Agency's rights to assign employees and work.
The Union did not file a reply brief in this case. Accordingly, the
Union did not address the Agency's argument, which was not contained in
its written assertion of nonnegotiability, concerning internal security
practices.
2. Definition of Emergency
The Agency contends that by defining "emergency," the provision
limits and is, therefore, inconsistent with its reserved right under
section 7106(a)(2)(D) of the Statute to take "whatever actions may be
necessary to carry out the agency mission during emergencies." Since the
term "emergency" is not defined in the Statute and has not been defined
by the FLRA through case decisions, the Agency maintains that it is free
to act in what it perceives to be emergencies, subject to FLRA review
through the unfair labor practice procedures.
The Union's position is that the parties may agree to a definition of
a word or phrase as long as the word or phrase is not explicitly defined
in the Statute or case law. It asserts that the provision both permits
the Agency to exercise its rights during and emergency and prevents the
Agency from "abusing the concept of an 'emergency'" in order to
circumvent collective bargaining obligations. Union Petition for Review
at 2.
B. Analysis
1. Health and Safety Committee
Provision 1 provides that the Committee, to which the Agency and the
Union each appoint two members, shall have as one of its functions the
investigation of unsafe working conditions. The Agency argues that the
provision is inconsistent with its rights to assign employees, assign
work, and determine its internal security practices.
The Authority has consistently held that the right to assign
employees means the right to assign them to positions in the agency.
See American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83
(1981). The designation of an employee to serve on the Health and
Safety Committee does not constitute an assignment to a position and is
not, therefore, inconsistent with the Agency's right to assign
employees. See American Federation of Government Employees, AFL-CIO,
Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General
Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984).
As for the Agency's right to assign work, the participation of Union
representatives on the Committee does not concern official, prescribed
duties. Accordingly, it does not involve the assignment of "work"
within the meaning of section 7106(a)(2)(B) of the Statute. See
National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).
Further, the provision neither requires the Agency to appoint particular
individuals to the Committee nor prevents it from changing its
designations. The Agency's contentions concerning its right to select
the individuals to represent its interests, therefore, lack merit, and
its citation of the Authority's decision in National Federation of
Federal Employees, Local 78 and Veterans Administration Regional Office,
Indianapolis, Indiana, 9 FLRA 819 (1982), as support for its argument is
inapposite. In the latter case, the proposal in question prescribed
specific duties to particular employees. Such is not the case here.
Finally, as for the Agency's contention that the provision interferes
with its right to determine its internal security practices, nothing in
the provision would prevent the Agency from determining that an unsafe
working condition or accident scene should be examined by personnel of
its choice prior to an investigation by the Committee. In fact, the
Union concedes that nothing in the provision grants the Committee "sole
province" over the investigation of unsafe working conditions. Union
Petition for Review at 2. They Agency has not established how the
provision would interfere with its discretion and judgment concerning
its investigatory responsibilities. Compare National Treasury Employees
Union and NTEU Chapter 61 and Department of the Treasury, Internal
Revenue Service, Albany District, New York, 7 FLRA 304 (1981), in which
the Authority determined that a proposal to delay investigative searches
was not inconsistent with management's right to determine its internal
security practices.
The Authority has issued decisions concerning the negotiability of
proposals for both "certified" and "uncertified" health and safety
committees. The Agency does not argue and it does not appear from the
record that the Committee is intended to be "certified" by the Secretary
of Labor under E.O. 12196, thereby enabling the Agency among other
things to avoid unannounced inspections by the Occupational Safety and
Health Administration, as was the safety and health committee the
establishment of which was found to be nonnegotiable in National
Treasury Employees Union and Department of the Treasury, Bureau of
Government Financial Operations, 21 FLRA No. 83 (May 8, 1986). Thus,
the law and regulations applicable to the discussion of "certified"
committees in that case are not pertinent here.
As for "uncertified" committees, the Union makes clear that the
Committee's investigative function is not intended to preclude the
Agency from assigning investigative work to others, including officials
from outside the Agency. Union Petition for Review at 2. The Union
states that the Committee is intended to provide a "constructive forum"
in which to address health and safety issues. Union Petition for Review
at 1. Accordingly, the Committee's functions do not replace or conflict
with the Agency's responsibilities, and the Committee is not intended to
bypass management in the health and safety area. As such, the provision
differs from the proposal for an "uncertified" committee found to be
nonnegotiable in American Federation of Government Employees, AFL-CIO,
Local 2786 and Defense Mapping Agency, 20 FLRA No. 26 (September 20,
1985) (Provision 3). Since the provision concerns a Committee which
constitutes a forum for the expression of concerns over health and
safety matters and the development of recommendations concerning them
rather than a forum enabling the Union to interject itself into the
decisionmaking process through which the Agency exercises its reserved
rights under the Statute, it is consistent with the proposal for an
"uncertified" committee found to be negotiable in American Federation of
Government Employees, AFL-CIO, Council of Prison Locals and Department
of Justice, Bureau of Prisons, 11 FLRA 286 (1983) (Provision 2).
Further, unlike the proposal in American Federation of Government
Employees, Local 644 and U.S. Department of Labor, Mine Safety and
Health Administration, 21 FLRA No. 122 (May 29, 1986) (Proposal 3), the
wording of Provision 1 and the parties' statements clearly set forth the
nature and functions of the Committee. In Mine Safety and Health
Administration, the proposal providing union participation on a safety
and health inspection team and the parties' statements were not
sufficiently specific as to the functions of the team or the nature of
the union's participation to enable the Authority to decide whether the
proposal was negotiable.
Moreover, the provision is also consistent with Authority decisions
that proposals for joint labor-management committees concerned with
other matters are negotiable. See, for example, U.S. Army Adjutant
General Publication Center, where the Authority found negotiable a
proposal for a joint labor-management committee to develop the agency's
training program, and noted that the committee would only provide the
union with an opportunity to express its views rather than mandating
joint determination of the substantive aspects of the program; and
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
217 (1981) (Proposal 6), where the Authority found negotiable a proposal
to create a joint labor-management committee with the limited power to
recommend changes in the performance appraisal system, and determined
that the agency retained its discretion to accept or reject any of the
committee's recommendations.
2. Definition of Emergency
Provision 2 provides a definition for the term "emergency," a term
which is used in three portions of the parties' collective bargaining
agreement: (1) Article IV, Section 1 b. 4, concerning management's
rights; (2) Article XXV, Section 2, concerning notice periods prior to
changes in tours of duty; and (3) Article XXVI, Section 1 f, concerning
postings of overtime schedules. The Agency argues that the provision
limits its right under section 7106(a)(2)(D) of the Statute to "take
whatever actions may be necessary to carry out the agency mission during
emergencies." The Union disagrees, stating that the provision would "in
no way limit management's freedom of action in the event of an
emergency." Union Petition for Review at 3.
The Authority agrees with the Agency. Provision 2 would limit the
exercise of management's section 7106(A)(2)(D) right to those situations
falling within the definition of "emergency." As such, the provision is
similar to Provision 1 in Association of Civilian Technicians, Inc.,
Pennsylvania State Council and the Adjutant General, Department of
Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346 (1981),
reversed as to other matters sub nom. Adjutant General, Department of
Military Affairs, Pennsylvania v. FLRA, 685 F.2d 93 (1982), which the
Authority found nonnegotiable because it would have limited management's
right to act during emergencies to situations where the emergency was
verified and declared by the activity supervisor. By precluding the
Agency from independently assessing whether an emergency exists,
Provision 2 in this case also limits management's right to act in
emergencies and, as a result, in nonnegotiable.
C. Conclusions
For the reasons stated above, Union Provision 1 is not inconsistent
with management's rights under section 7106 of the Statute to assign
employees, assign work, and determine its internal security practices,
as alleged by the Agency. Provision 1, therefore, is within the duty to
bargain. /*/ Union Provision 2 is inconsistent with management's right
to take actions which may be necessary to carry out the Agency's mission
during emergencies. Accordinly, Union Provision 2 is outside the duty
to bargain.
III. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
of Union Provision 1 which was bargained on and agreed to by the parties
at the local level; IT IS FURTHER ORDERED that the petition for review
as to Union Provision 2 be, and it hereby is, dismissed.
Issued, Washington, D.C., June 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
--------------- FOOTNOTES$ ---------------
(*) In deciding that the provision is within the duty to bargain, the
Authority makes no judgment as to its merits.