[ v23 p547 ]
23:0547(75)NG
The decision of the Authority follows:
23 FLRA No. 75
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-77
Union
and
VETERANS ADMINISTRATION
MEDICAL CENTER, GRAND JUNCTION, CO
Agency
Case No. 0-NG-1204
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Labor-Management
Relations Statute (the Statute) and concerns the negotiability of the
following Union proposal:
Article X, Section 9 (b)
The Union President will be granted two (2) specifically
scheduled hours in the Union office per week and the Chief Steward
will be granted three (3) specifically scheduled hours in the
Union office per week. It is agreed that only representational
duties will be performed during these scheduled times. The
scheduled times will be worked out between the parties after the
completion of this Supplemental Agreement.
We hold that the proposal is within the statutory duty to bargain.
II. Positions of the Parties
The Agency contends the proposal is nonnegotiable because it violates
sections 7106(a)(2)(B) and 7131(d) of the Statute; the governing master
agreement; and, finally, because it pertains to an employee who is not
covered by the master agreement.
The Union argues that the proposal is negotiable since it is
consistent with the terms of the governing master agreement and because
it pertains only to bargaining unit employees. The Union also argues
that the proposal would not prevent the Agency from assigning work under
section 7106(a)(2)(B) of the Statute.
III. Analysis
A. Management's right to "assign work" is not a bar to
negotiability.
The proposal provides for specifically scheduled hours in the Union
office on a weekly basis for the Union President and the Chief Steward.
The parties are to "work out" these scheduled times in the future.
The Agency has the burden of demonstrating that granting official
time will interfere with the accomplishment of its assigned work.
Overseas Federation of Teachers and Department of Defense Dependent
Schools, Mediterranean Region, APO New York, 21 FLRA No. 81 (1986);
Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA No.
89 (1985), petition for review filed sub nom. National Association of
Government Employees, Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir.
January 7, 1986). In this case the Agency contends that the proposal
removes its discretion to assign work under section 7106(a)(2)(B) since
the proposal requires "specifically scheduled hours" to perform
representational duties. The Agency relies on National Treasury
Employees Union and NTEU Chapter 80 and Department of the Treasury,
Internal Revenue Service, Central Region, 8 FLRA 197 (1982); American
Federation of Government Employees, Local 2094, AFL-CIO and Veterans
Administration Medical Center, New York, New York, 19 FLRA No. 120
(1985). In each of these cases the Authority found proposals
nonnegotiable that specifically allocated to bargaining unit employees
fifteen minute periods at the beginning and end of each workday to
perform particular functions -- packing/unpacking files, reaching duty
stations, performing personal hygiene and changing clothes -- not
associated with the work normally performed by those employees. The
Authority held that each of those proposals removed management's
discretion to assign work under section 7106(a)(2)(B) of the Statute.
Even apart from the consideration that this proposal is concerned
with representational activities, which are statutorily sanctioned as
discussed in B, below, the proposal here is substantially different from
those in Internal Revenue Service and Veterans Administration Medical
Center, and warrants an opposite conclusion. While the proposal calls
for the Union's President and Chief Steward to be granted specifically
scheduled hours in the Union office, it also provides that the parties
will work out scheduled times in the future. Thus, the proposal does
not itself schedule which hours the Union President and Chief Steward
will spend in the Union office. Rather, the proposal allows the parties
to make adjustments as necessary. The Agency's claim is merely
speculative; it has failed to show that the use of official time under
the proposal will interfere with the assignment or accomplishment of its
work.
B. The proposal is consistent with section 7131(d) of the
Statute.
Section 7131(d) authorizes the negotiation of official time for
labor-management related representational matters such as contract
administration, participation in grievance arbitration and the like.
Veterans Administration Medical Center, 19 FLRA No. 120, slip op. at 3.
The disputed proposal specifically provides that "only representational
duties" will be performed during the times scheduled in the Union
office. As such, the proposal is clearly consistent with the
requirements of section 7131(d) of the Statute.
Despite the express language of the proposal, the Agency argues that
the Union President and Chief Steward will use negotiated official time
to conduct internal union business prohibited by section 7131(b) of the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio,
2 FLRA 4 (1979). An agency cannot remove an otherwise negotiable
proposal from the bargaining table simply because the agency expects
that, if agreed upon, the proposal would provide the opportunity for
some abuse. Such speculation provides no basis for finding a proposal
nonnegotiable. We decide here only the negotiability issues presented
under section 7105(a)(2)(E) of the Statute concerning whether the
proposal is consistent with applicable law and regulation and,
therefore, within the duty to bargain.
C. The parties' master agreements do not require a finding
of nonnegotiability.
1. Background
This appeal arose from negotiations for a supplemental agreement to a
master agreement covering nonprofessional and GS professional employees
(Agreement 1). NAGE and the Veterans Administration are also parties to
a master agreement covering registered nurses (Agreement 2). The Agency
argues that this appeal is inappropriate because it violates Article 6,
Section 14 of Agreement 1. Further, the Agency contends that the
proposal is nonnegotiable because it applies to an employee not covered
by Agreement 1.
2. Claimed violation of Agreement 1.
The Agency's claim that the proposal is not appropriate for inclusion
in a local supplemental agreement under the Agency's interpretation of
the provisions of Master Agreement 1 does not raise negotiability issues
under section 7117 of the Statute. Rather, it raises a question for
resolution through whatever procedures Agreement 1 establishes for
contract interpretation disputes. National Treasury Employees Union,
Chapter 153 and Department of the Treasury, U.S. Customs Service, Region
II, 21 FLRA No. 102, slip op. at 6 (1986).
3. Claim that proposal applies to an employee not covered
by Agreement 1.
The Agency argues the proposal is nonnegotiable since it arose from
negotiations supplemental to Agreement 1, but the Union President to
whom it applies is a registered nurse subject to the terms of Agreement
2. This argument is without merit. Under section 7131(d) of the
Statute a Union representative is entitled to official time to represent
fellow bargaining unit employees in an amount the parties agree to be
reasonable, necessary and in the public interest. See, for example,
American Federation of Government Employees, Local 1698 and Department
of the Navy, Aviation Supply Office Consolidated Civilian Personnel
Division, 17 FLRA 557, 559 (1985). Although not himself covered by
Agreement 1, the Union President is a member of a bargaining unit to
which Agreement 1 and the disputed proposal would apply. Thus, the
proposal is negotiable insofar as it grants the Union President and
Chief Steward official time to perform representational duties on behalf
of other members of the bargaining unit of which they are members.
Compare American Federation of Government Employees, AFL-CIO, Local 2225
and U.S. Department of Defense, Naval Air Rework Facility, Norfolk,
Virginia, 19 FLRA No. 22 (1985).
IV. Conclusions
For the reasons stated above, the Authority concludes that the
proposal is consistent with management's right to assign work and the
requirements of section 7131(d) of the Statute. The claim that the
proposal is barred by Agreement 1 does not state a ground pertaining to
the negotiability of the proposal under the Statute. Finally, the
proposal only concerns conditions of employment of bargaining unit
employees.
V. Order
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 concerning the Union's proposal. /*/
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In deciding that the proposal is within the duty to bargain we
make no judgment on its merits.