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49 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NEWINGTON, CONNECTICUT

(Agency)

0-NG-2168

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

April 26, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal. The proposal provides official time for a Union representative to attend unemployment compensation hearings to which the Agency sends a representative. For the following reasons, we find that the proposal is nonnegotiable.

II. Proposal

A Union representative may attend[,] in an official time capacity, those hearings related to an unemployment compensation claim where the [Agency] likewise sends a representative.

III. Positions of the Parties

A. Agency

The Agency acknowledges that section 7131(d) of the Statute authorizes unions to negotiate over the use of official time for representational activities, but contends that such activities do not include appearances at unemployment compensation hearings concerning former employees.⁽¹⁾ The Agency asserts that the proposal would require it to grant official time to Union representatives to attend unemployment compensation hearings "not based on whether the Union would perform any representational duties, but solely on the basis of whether or not management sent someone to the hearing." Statement of Position at 5. The Agency contends that the Union has not demonstrated any relationship between the proposal and any labor-management or other employment activity because "the Union does not plan to represent former employees in unemployment compensation hearings" and such hearings have "nothing to do with collective bargaining, conditions of employment, or any other representational activity in which the [U]nion may engage[.]" Id. at 5-6. The Agency maintains, therefore, that the proposal is not negotiable under section 7131(d) of the Statute.

Additionally, the Agency argues that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that, by requiring management to grant a request for official time, the proposal places restrictions on management's ability to deny that request without regard to management's need for the employee's services during the period covered by the request. Further, the Agency claims that the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute because it imposes substantive limitations on management's right to assign work. Finally, the Agency asserts that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with management's right to assign work.

B. Union

The Union states that the proposal concerns the use of official time "for the purposes of representing employee interests at unemployment compensation hearings." Petition for Review at 1. The Union asserts that "[t]he proposal is both an appropriate arrangement, and a procedure under 5 USC § 7106(b), as well as an appropriate use of official time pursuant to 5 USC § 7131(d)." Id.

IV. Analysis and Conclusions

For the following reasons, we find that the proposal is nonnegotiable.

A. Sections 7131(d) and 7106(a)(2)(B) of the Statute

Official time may be negotiated under section 7131(d) of the Statute for labor-management relations activities. See, for example, American Federation of Government Employees, National Immigration and Naturalization Service Counsel and U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 45 FLRA 391, 399 (1992) (AFGE/INS), enforced in relevant part, 4 F.3d 268, 271-73 (4th Cir. 1993); and National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, MA, 23 FLRA 542, 543 (1986). Official time negotiated under section 7131(d) constitutes an exception to management's right to assign work under section 7106(a)(2)(B) of the Statute. National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 346-48 (1992) (BATF) (Member Armendariz dissenting in part as to other matters); and Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 588 (1987). Official time may also be negotiated "in other circumstances unrelated to labor-management relations activities, provided that the granting of official time in those other circumstances is otherwise consistent with the Statute and other applicable laws and regulations." American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546, 553 (1991). See also AFGE/INS. However, as official time for activities other than labor-management relations activities is not encompassed by section 7131(d) of the Statute, such official time is not excepted from management's right to assign work.

The Authority previously has found that matters pertaining to unemployment compensation hearings do not concern labor-management relations activities. U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362, 371 (1990) (National Border Patrol Council); and Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 27 FLRA 391, 392-93 (1987) (SSA), request for reconsideration denied, 29 FLRA 194 (1987). The record before us does not provide a basis for reaching a different conclusion here. In particular, the Union has not demonstrated a relationship between the presence of a Union representative at an unemployment compensation hearing to which the Agency sends a representative and labor-management relations activities. Therefore, consistent with SSA and National Border Patrol Council, we conclude that the proposal does not concern a matter related to labor-management relations activities within the meaning of section 7131(d) of the Statute.

Proposals requiring the granting of official time which is not encompassed by section 7131(d) of the Statute directly interfere with management's right to assign work under section 7106(a)(2)(B) because such proposals would "place restrictions on the Agency's ability to deny a request that an employee be excused from performing assigned duties for the period covered by the request." BATF, 45 FLRA at 350. Because the proposal in this case requires the granting of official time for a Union representative to attend an unemployment compensation hearing to which management sends a representative, we find that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

B. The Proposal Is Not Negotiable as a Procedure under Section 7106(b)(2) of the Statute

We reject the Union's assertion that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute. The Authority has long held that, when a proposal directly interferes with management's right to assign work under section 7106(a)(2)(B), the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188 (1991).

C. The Proposal Is Not Negotiable as an Appropriate Arrangement under Section 7106(b)(3) of the Statute

The Union also asserts that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176 (1994) (Member Armendariz concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

We find that the record does not contain sufficient information to determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. In its petition for review, the Union asserts, without more, that the proposal is intended as an appropriate arrangement. The Union does not show how employees would be adversely affected by the exercise of management's right to determine when work that has been assigned will be performed. Specifically, the Union does not show how employees would be adversely affected if management did not approve official time for a Union representative to attend an unemployment compensation hearing which is also being attended by a management representative. The Union does not allege, for example, that it represents unit employees at unemployment compensation hearings. Moreover, the Union did not file a response to the Agency's statement of position contesting the Union's assertion that the proposal is an appropriate arrangement.

It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. See, for example, U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333, 345 (1994). Because the record does not provide a basis on which to conclude that the proposal constitutes an arrangement under section 7106(b)(3) of the Statute, and because the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B), we find that the proposal is nonnegotiable. See American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration District Office, Oceanside, California, 49 FLRA 279, 291 (1994).

V. Order

The Union's petition for review is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Section 7131(d) of the Statute provides:

(d) Except as provided in the preceding subsections of this section--

(1) any employee representing an exclusive representative, or

(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

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