NAGE Local R14-77 and Veterans Administration Medical Center, Grand Junction (Authority decision, September 30, 1986)

Final FLRA decision. The Authority orders the medical center to bargain on a proposal for scheduled official time for union representatives. An aggrieved person may seek judicial review of this final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

NAGE Local R14-77 proposed two scheduled hours a week in the union office for its president and three for its chief steward, solely for representational duties. The Grand Junction VA Medical Center argued that the proposal would interfere with work assignments and could permit internal union business on official time. The Authority found that the parties would set the specific hours later and that the center had not shown an actual conflict with its work. It also found that the proposal expressly covered representational work, which the statute permits on negotiated official time. The Authority ordered bargaining on the proposal.

Decision snapshot

• Authority: Work assignment rights under 5 U.S.C. § 7106(a)(2)(B) and negotiated official time under § 7131(d).
• Outcome: Proposal within the duty to bargain; bargaining ordered.
• Key point: A jointly scheduled block for representational work did not itself prevent management from assigning work.

Full text (FLRA public release)

[ 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.