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09:1022(141)NG
The decision of the Authority follows:
9 FLRA No. 141
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3399
Union
and
HARRY S. TRUMAN
MEMORIAL VETERANS
HOSPITAL, COLUMBIA, MISSOURI
Agency
Case No. O-NG-380
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES REGARDING THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
PROPOSALS. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE
AUTHORITY MAKES THE FOLLOWING DETERMINATIONS. /1/
UNION PROPOSAL 1
RETAIN PARKING LOTS A AND D EXCLUSIVELY FOR THE USE OF EMPLOYEES.
UNION PROPOSAL 2
HOSPITAL TO CONSTRUCT A SET OF ENTRANCE AND EXIT GATES TO BE ADDED TO
THE EAST END OF
PARKING LOT D IN ORDER TO ALLOW TRAFFIC FLOW DIRECTLY TO AND FROM
MONK DRIVE.
THE NEGOTIABILITY DISPUTE CONCERNS WHICH OF THE AGENCY'S PARKING
FACILITIES WILL BE USED BY EMPLOYEES. IT ARISES OUT OF THE SAME FACTS
AND CIRCUMSTANCES AS AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE UNION
(7-CA-756); THE CHARGE INVOLVED THE ALLEGED FAILURE OF THE AGENCY TO
NEGOTIATE ITS DECISION TO USE ITS PARKING LOT A AT THE HOSPITAL FOR
VISITOR RATHER THAN EMPLOYEE PARKING AND TO USE ITS LOT B FOR EMPLOYEE
RATHER THAN VISITOR AND PATIENT PARKING. INSOFAR AS THE DISPOSITION OF
THE CHARGE RELATES TO PROPOSAL 1, HEREIN, THE REGIONAL DIRECTOR FOUND
THAT ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY'S
DECISION CONCERNED THE USE OF ITS PARKING FACILITIES IN ORDER TO
"ACCOMMODATE ITS CLIENTELE MOST EFFECTIVELY . . . NOT A MANDATORILY
BARGAINABLE MATTER." INSOFAR AS DISPOSITION OF THE CHARGE RELATES TO
PROPOSAL 2, HEREIN, THE REGIONAL DIRECTOR FOUND ESSENTIALLY THAT
ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY HAD
FULFILLED ITS OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION
OF ITS DECISION PRIOR TO ACTUAL IMPLEMENTATION. NO APPEAL OF THE
REGIONAL DIRECTOR'S DETERMINATION WAS TAKEN TO THE GENERAL COUNSEL.
NOTING THAT THE FACTUAL CIRCUMSTANCES INVOLVED IN THE DISPUTE IN THIS
CASE ARE UNCLEAR BASED SOLELY UPON THE UNION'S SUBMISSIONS, SEE NOTE 1,
SUPRA, AND NOTING FURTHER THAT NO APPEAL WAS TAKEN FROM THE REGIONAL
DIRECTOR'S DECISION TO DISMISS THE UNFAIR LABOR PRACTICE CHARGE, THE
AUTHORITY REFERS TO THE FACTS SET FORTH IN THE REGIONAL DIRECTOR'S
DECISION. /2/ PROPOSAL 1 WOULD REQUIRE BARGAINING OVER MANAGEMENT'S
DECISION AS TO WHICH OF THE AGENCY'S PARKING FACILITIES WILL BE USED TO
ACCOMMODATE ITS CLIENTELE. IT WOULD REQUIRE "EXCLUSIVE" USE BY
EMPLOYEES OF THOSE FACILITIES WHICH MANAGEMENT HAS DESIGNATED FOR USE BY
HOSPITAL CLIENTELE IN ORDER TO ACCOMMODATE THEM MOST EFFECTIVELY. THE
AUTHORITY CONCLUDES THAT SUCH A DESIGNATION BY THE AGENCY CONCERNING THE
USE OF ITS PARKING FACILITY IS A DETERMINATION WITH RESPECT TO THE
"MEANS OF PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF
THE STATUTE. SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254, 258(1979).
THE PROPOSAL WOULD DIRECTLY INTERFERE WITH MANAGEMENT'S DETERMINATION,
IN EFFECT, PREVENTING MANAGEMENT FROM ACHIEVING ITS INTENDED RESULT.
UNDER THE STATUTE, DETERMINATIONS AS TO THE MEANS OF PERFORMING WORK ARE
NOT WITHIN THE DUTY TO BARGAIN ALTHOUGH THEY ARE NEGOTIABLE AT THE
ELECTION OF THE AGENCY. HERE, THE AGENCY HAS ELECTED NOT TO BARGAIN.
AS TO PROPOSAL 2, IT WOULD NOT REQUIRE NEGOTIATIONS OVER MANAGEMENT'S
DECISION AS TO WHICH PARKING FACILITIES WILL BE USED BY AGENCY
CLIENTELE. RATHER, IT IS CONCERNED WITH THE IMPACT AND IMPLEMENTATION
OF THAT DECISION. HOWEVER, AS ALREADY MENTIONED, THE REGIONAL DIRECTOR
REFUSED TO ISSUE A COMPLAINT IN THE RELATED UNFAIR LABOR PRACTICE CASE
BECAUSE HE FOUND THAT THE AGENCY HAD MET ITS DUTY TO BARGAIN WITH
RESPECT TO IMPACT AND IMPLEMENTATION OF ITS DECISION. HENCE, IT IS
CONCLUDED THAT THE NEGOTIABILITY ISSUE RAISED BY PROPOSAL 2 IS MOOT.
CF. CASES CITED NOTE 2 SUPRA (NEGOTIABILITY ISSUES RENDERED MOOT BY
REGIONAL DIRECOTR'S DECISIONS THAT NO CHANGES IN AGENCY POLICY SUCH AS
TO GIVE RISE TO BARGAINING OBLIGATIONS).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW AS TO PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.
FURTHER, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IT ORDERED
THAT THE UNION'S PETITION FOR REVIEW AS TO PROPOSAL 2 BE, AND IT HEREBY
IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE AGENCY'S STATEMENT OF POSITION WAS FILED MORE THAN THIRTY
DAYS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS
IS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS IS
UNTIMELY UNDER SECTION 7117(C)(3) OF THE STATUTE AND SECTION 2424.6 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.6(1981)). THEREFORE,
THE AGENCY'S STATEMENT HAS NOT BEEN CONSIDERED BY THE AUTHORITY IN
MAKING ITS DECISION HEREIN. ADDITIONALLY, THE AGENCY'S MOTIONS FOR
LEAVE TO FILE ADDITIONAL DOCUMENTS ARE DENIED. SEE 5 CFR 2424.8(1981).
/2/ IN THIS REGARD, THE AUTHORITY REFERS ONLY TO THE FACTUAL
CONCLUSIONS DRAWN BY THE REGIONAL DIRECTOR AND DOES NOT RELY UPON THE
REGIONAL DIRECTOR'S CONCLUSION THAT THE PROPOSAL IS "NOT A MANDATORILY
BARGAINABLE MATTER." SEE GENERALLY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN,
KOREA, 8 FLRA NO. 26(1982); NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN, KOREA, 8 FLRA
NO. 39(1982).