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12:0600(110)NG
The decision of the Authority follows:
12 FLRA No. 110
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1579
Union
and
VETERANS ADMINISTRATION REGIONAL
OFFICE, LOUISVILLE, KENTUCKY
Agency
Case No. O-NG-308
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Federal Labor
Relations Authority pursuant to section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute). The issue
presented is the negotiability of two Union proposals.
Union Proposal 1
Proposal 1 - INCENTIVE AWARDS
1. The Employer agrees that the Union shall have two (2)
representatives on the Incentive Awards Committee. Said
representatives will participate in deliberations and discussions
with respect to planning the suggestion program, stimulating
participation, establishing goals and targets, evaluating
progress, and appraising employee, supervisor, and management
reactions.
2. During evaluations and voting procedures with respect to
nominees for Incentive Awards, the Union representatives shall
serve as participating members of the committee.
Question Before the Authority
The question presented is whether Union Proposal 1 is, as alleged by
the Agency, inconsistent with section 7106(a)(2)(B) of the Statute or is
otherwise outside the duty to bargain since it would apply to nonunit
employees.
Opinion
Conclusion and Order: Union Proposal 1 is not inconsistent with section
7106(a)(2)(B) of the Statute, nor does it extend to employees who are
not in the bargaining unit. Accordingly, pursuant to section 2424.10 of
the Authority's Rules and Regulations, IT IS ORDERED that the Agency
shall upon request (or as otherwise agreed to by the parties) bargain on
this proposal. /1/ Reasons: Paragraph 1 of Union Proposal 1 would
place two Union representatives on the Incentive Awards Committee and
would, in effect, require the Committee to participate in planning,
stimulating participation in, and evaluating the suggestion program. As
to paragraph 1, the Agency's sole contention is that, since it has
already delegated responsibility over the suggestion program to the
Personnel Officer, negotiations over the proposal would be inconsistent
with its right to assign work under section 7106(a)(2)(B). /2/ However,
the proposal herein would authorize a procedure for union participation
in the administration of a program which directly concerns conditions of
employment of bargaining unit employees, see National Federation of
Federal Employees, Local 541 and Veterans Administration Hospital, Long
Beach, California, 12 FLRA No. 62 (1983), and is in no manner concerned
with management's assignment of work to management representatives. See
American Federation of Government Employees, AFL-CIO, Local 1886 and
Marine Corps Development and Education Command, Quantico, Virginia, 2
FLRA 423 (1980). Moreover, the Agency has not alleged, nor is it
otherwise apparent, that any applicable law, rule, or regulation vests
in management the sole and exclusive right to establish and execute a
suggestion program or otherwise precludes negotiation over such a
program. /3/ Accordingly, the Agency's contention that paragraph 1 of
Union Proposal 1 is not within the duty to bargain cannot be sustained.
Paragraph 2 of Union Proposal 1 would require that the Union
representatives on the Incentive Awards Committee serve as participating
members in evaluating and voting on nominees for incentive awards. In
that regard, as acknowledged by the Union, the Incentive Awards
Committee only makes recommendations to the Regional Director, who has
the final authority to approve or disapprove any recommended award. /4/
The Agency's sole contention as to paragraph 2 is that the language of
the proposal would establish an Incentive Awards Committee to administer
the incentive awards program for the entire Agency, which would include
employees who are not within the unit represented by the Union. 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).
Although on its face the proposal does not limit the role of Union
representatives only to matters involving unit employees, the Union
explicitly states that as its intent, /5/ and this interpretation is not
inconsistent with the language of the proposal and is adopted for the
purposes of this decision. /6/ So interpreted, paragraph 2 of the
proposal herein pertains to the conditions of employment of employees
represented by the Union, and therefore, is within the duty to bargain.
Union Proposal 2
FLEXITIME: Employees, at their election, shall work a standard
core period of three (3) hours between 11 am and 2 pm. Employees,
at their election, may begin work at any time prior to this core
period, and may leave work at any time after this core period, so
long as the total number of hours worked during the day (exclusive
of non-paid lunch period) is eight (8) hours. For employees
working other than the normal tour of duty, similar flexible
schedules shall be established through negotiations between the
parties. Exceptions to this policy shall be made only following
mutual agreement of the parties through negotiations.
Union Proposal 2 would mandate bargaining over the establishment of
flexible schedules and exceptions thereto, and would set certain core
and flexible hours of work for bargaining unit employees. However,
effective July 23, 1982, the Federal Employees Flexible and Compressed
Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227, inter
alia, added a new section 6131 to title 5, U.S. Code, which prescribes
the criteria and review procedures governing the establishment or
termination of a flexible or compressed schedule where the head of an
agency determines that such schedule would have an adverse agency
impact. Since neither party has had the opportunity to address the
impact of Pub. L. No. 97-221 upon the matters involved in the instant
proposal, IT IS ORDERED that the Union's petition for review as to
Proposal 2 be, and it hereby is, dismissed, without passing upon the
merits of the appeal and without prejudice to the refiling of an appeal,
pursuant to the Rules and Regulations of the Authority, after the
parties have considered the impact of Pub. L. No. 97-221 upon the
matters involved in the proposal. Issued, Washington, D.C., August 16,
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, the
Authority, of course, makes no judgment as to its merits.
/2/ Section 7106(a)(2)(B) of the Statute provides 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, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
/3/ Cf. 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)
(Proposal 3), affirmed sub nom. National Federation of Federal
Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886
(D.C. Cir. 1982) (involvement of the exclusive representative in
sessions where agency officials are engaged in managerial deliberations
and discussions as part of their decision-making process, held to
directly interfere with management's rights to make determinations with
respect to contracting out).
/4/ Union Statement of July 1, 1980 at 3.
/5/ Union Statement of July 1, 1980 at 3.
/6/ See American Federation of Government Employees, AFL-CIO, Local
32 and Office of Personnel Management, Washington, D.C., 3 FLRA 783, 793
(1980) (Union Proposal 5).