NFFE Local 1431 and VA Medical Center East Orange (Authority decision, August 16, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition 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 Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NFFE Local 1431 proposed a union representative on the VA medical center’s professional standards boards and position management committee. The Authority held that required union participation in those management deliberations conflicted with management rights. It dismissed the negotiability petition on the merits.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a).
• Outcome: Union-seat proposal held outside the duty to bargain; petition dismissed.
• Key point: The proposal would intrude on management’s internal decision process.

Full text (FLRA public release)

[ v09 p998 ]

09:0998(139)NG

The decision of the Authority follows:

9 FLRA No. 139

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1431
Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER, EAST
ORANGE, NEW JERSEY
Agency

Case No. O-NG-245

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 THE QUESTION OF THE NEGOTIABILITY OF ONE UNION PROPOSAL. UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE AUTHORITY MAKES THE
FOLLOWING DETERMINATIONS.

UNION PROPOSAL

THE UNION WILL HAVE A REPRESENTATIVE ON THE PROFESSIONAL STANDARDS
BOARDS AND THE POSITION

MANAGEMENT COMMITTEE.

QUESTION BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE.

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS INCONSISTENT WITH THE
RIGHTS OF MANAGEMENT UNDER SECTION 7106(A) AND (B) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED. /1/

REASONS: THE AUTHORITY HAS CONSISTENTLY HELD THAT THE MANAGEMENT
RIGHTS ENUMERATED IN SECTION 7106 INCLUDE MORE THAN MERELY THE RIGHT TO
DECIDE TO TAKE THE FINAL ACTIONS SPECIFIED. SEE E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 613(1980),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE, V. FLRA 659 F.2D 1140,
1160-61(D.C.CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. . . . ,
102 S.CT. 1443(1982); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE, OKLAHOMA, 7 FLRA NO.
45(1981). FOR EXAMPLE, THE AUTHORITY HAS HELD THAT THE RIGHT OF
MANAGEMENT OFFICIALS UNDER SECTION 7106(A)(2)(B) TO MAKE DETERMINATIONS
WITH RESPECT TO CONTRACTING OUT ENCOMPASSES NOT ONLY THE RIGHT TO ACT IN
THIS REGARD BUT ALSO THE RIGHT TO DISCUSS AND DELIBERATE CONCERNING THE
RELEVANT FACTORS UPON WHICH SUCH A DETERMINATION WILL BE MADE. 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), ENFORCED SUB NOM. NATIONAL
FEDERATION OF FEDERAL EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR.
1982). THUS, WHEN MANAGEMENT ESTABLISHES FORMAL ORGANIZATIONAL
STRUCTURES TO UNDERTAKE SUCH DELIBERATIONS AS AN INTEGRAL PART OF ITS
SUBSTANTIVE DECISION-MAKING PROCESS, A PROPOSAL WHICH WOULD REQUIRE
UNION PARTICIPATION WOULD HAVE THE EFFECT OF DIRECTLY INTERFERING WITH
MANAGEMENT'S STATUTORY RIGHT TO MAKE THE DECISIONS INVOLVED.

BASED ON THE UNCONTROVERTED STATEMENTS OF THE AGENCY IN THE RECORD OF
THIS CASE, /2/ THE POSITION MANAGEMENT COMMITTEE REFERRED TO IN THE
DISPUTED PROPOSAL WAS ESTABLISHED PURSUANT TO AN INTERNAL AGENCY
REGULATION TO ASSIST THE DIRECTOR OF THE MEDICAL CENTER IN THE
IMPLEMENTATION OF THE AGENCY'S POSITION MANAGEMENT PROGRAM. IT IS
COMPOSED ENTIRELY OF MANAGEMENT OFFICIALS. THE COMMITTEE REVIEWS THE
OVERALL DISTRIBUTION OF WORK AT THE MEDICAL CENTER, INCLUDING PROPOSED
CHANGES IN ORGANIZATIONAL STRUCTURE AS THEY RELATE TO WORK DESIGN,
OCCUPATIONAL AND GRADE DISTRIBUTION, AND STAFFING REQUIREMENTS. AS A
RESULT OF ITS REVIEW OF THESE MATTERS, THE COMMITTEE MAY RECOMMEND TO
THE DIRECTOR VARIOUS COURSES OF ACTION THAT COULD BE TAKEN IN REGARD TO
POSITION MANAGEMENT AT THE MEDICAL CENTER. /3/ THUS, THE POSITION
MANAGEMENT COMMITTEE CONSTITUTES AN INTEGRAL PART OF THE MANAGERIAL
DECISION-MAKING PROCESS AS IT RELATES TO MATTERS CONCERNING THE
ORGANIZATION AND STAFFING OF THE MEDICAL CENTER AND THE ASSIGNMENT OF
WORK TO EMPLOYEES, ALL OF WHICH MATTERS INVOLVE THE EXERCISE OF
MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE. /4/

BASED FURTHER ON THE AGENCY'S UNCONTROVERTED STATEMENTS, THE
PROFESSIONAL STANDARDS BOARDS REFERRED TO IN THE PROPOSAL WERE
ESTABLISHED BY VETERANS ADMINISTRATION REGULATIONS /5/ PROMULGATED
PURSUANT TO 38 U.S.C. 4106. /6/ SUCH BOARDS CONDUCT REVIEWS AND MAKE
RECOMMENDATIONS TO DESIGNATED MANAGEMENT OFFICIALS CONCERNING ALL
APPLICATIONS FOR PROFESSIONAL EMPLOYMENT AND THE PERFORMANCE OF
PROBATIONARY PROFESSIONAL EMPLOYEES. IN PARTICULAR, THE BOARDS DECIDE
WHETHER TO RETAIN OR REMOVE SUCH PROBATIONARY EMPLOYEES. THIS LATTER
DECISION IS, IN EFFECT, THE FINAL AGENCY ACTION SINCE, UNDER SEC. 4106,
IT IS NOT SUBJECT TO FURTHER REVIEW WITHIN THE AGENCY. SEE GIORDANO V.
ROUDEBUSH, 617 F.2D 511(8TH CIR. 1980). IN ADDITION, PROFESSIONAL
STANDARDS BOARDS REVIEW THE COMPETENCY OF PROFESSIONAL EMPLOYEES WHO
HAVE COMPLETED THE PROBATIONARY PERIOD TO DETERMINE WHETHER TO
RECOMMEND
COMMENCEMENT OF DISCIPLINARY PROCEEDINGS. THUS, THE BOARDS CONSTITUTE A
STATUTORILY MANDATED DECISION-MAKING PROCESS WHEREBY MANAGEMENT'S
AUTHORITY UNDER SECTION 7106 OF THE STATUTE TO HIRE AND TO RETAIN OR
REMOVE EMPLOYEES, IS EXERCISED THROUGH PROFESSIONAL PEER REVIEW. /7/

IN SUM, THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
STANDARDS BOARDS WERE ESTABLISHED BY AGENCY MANAGEMENT TO REVIEW, MAKE
RECOMMENDATIONS, AND TAKE ACTION WITH RESPECT TO MATTERS INVOLVING THE
EXERCISE OF MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE. AS
SUCH, THE COMMITTEE AND THE BOARDS ARE INTEGRAL PARTS OF THE PROCESS BY
WHICH MANAGEMENT DECIDES AND ACTS PURSUANT TO THOSE RIGHTS. THE UNION
PROPOSAL HEREIN WOULD REQUIRE THAT A UNION REPRESENTATIVE PARTICIPATE IN
THE MEETINGS OF THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
STANDARDS BOARDS. BY SO PROVIDING, THE PROPOSAL, LIKE THE PROPOSAL AT
ISSUE IN HOMESTEAD AIR FORCE BASE, WOULD ALLOW THE UNION TO INTERJECT
ITSELF INTO THAT DECISION-MAKING PROCESS AND THEREBY WOULD PREVENT
MANAGEMENT OFFICIALS FROM ENGAGING IN FREE AND OPEN DELIBERATIONS AMONG
THEMSELVES. SUCH DELIBERATIONS ARE AN ESSENTIAL PART OF MANAGEMENT'S
RIGHT TO MAKE DECISIONS UNDER SECTION 7106 OF THE STATUTE. THE DISPUTED
PROPOSAL WOULD THEREBY IMPAIR THE FLEXIBILITY WHICH CONGRESS INTENDED
MANAGEMENT OFFICIALS TO HAVE UNDER THE STATUTE. SEE DEPARTMENT OF
DEFENSE V. FLRA, 659 F.2D 1140, 1159-60(D.C. CIR. 1981). /8/ THUS, THE
UNION PROPOSAL AT ISSUE HEREIN, FOR THE REASONS SET FORTH IN THE
HOMESTEAD AIR FORCE BASE DECISION, WOULD DIRECTLY INTERFERE WITH
MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE AND, THEREFORE, IS
OUTSIDE THE DUTY TO BARGAIN. /9/

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/ IN LIGHT OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY
TO ADDRESS THE OTHER CONTENTIONS OF THE AGENCY CONCERNING THE
NEGOTIABILITY OF THE UNION'S PROPOSAL.

/2/ BECAUSE THE UNION DID NOT FILE A RESPONSE TO THE AGENCY'S
STATEMENT OF POSITION, THE AUTHORITY MAY PROPERLY ACCEPT THE AGENCY'S
UNCONTROVERTED FACTUAL ASSERTIONS. SEE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR. 1982) AT 10 OF SLIP
OPINION.

/3/ SEE VETERANS ADMINISTRATION CIRCULAR 00-76-40 (SEPT. 30, 1976).

/4/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, 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--

(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL

SECURITY PRACTICES OF THE AGENCY; AND

(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(.)

. . . .

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND AND LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION; OR

(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY

AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.

/5/ VETERANS ADMINISTRATION REGULATION MP-5, PART II, CHAPTER 2,
PARA. 5. SEE ALSO SUPPLEMENT, MP-5, PART II, CHAPTER 2, PARA. 2.05.

/6/ 38 U.S.C. 4106 PROVIDES, IN RELEVANT PART, AS FOLLOWS:

SEC. 4106. PERIOD OF APPOINTMENTS; PROMOTIONS

(A) APPOINTMENTS OF PHYSICIANS, DENTISTS, PODIATRISTS, OPTOMETRISTS,
AND NURSES SHALL BE

MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED
IN ACCORDANCE WITH

REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO
CIVIL-SERVICE REQUIREMENTS.

(B) SUCH APPOINTMENTS AS DESCRIBED IN SUBSECTION (A) OF THIS SECTION
SHALL BE FOR A

PROBATIONARY PERIOD OF TWO YEARS AND THE RECORD OF EACH PERSON
SERVING UNDER SUCH APPOINTMENT

IN THE MEDICAL, DENTAL, AND NURSING SERVICES SHALL BE REVIEWED FROM
TIME TO TIME BY A BOARD,

APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, AND IF
SAID BOARD SHALL FIND

HIM NOT FULLY QUALIFIED AND SATISFACTORY HE SHALL BE SEPARATED FROM
THE SERVICE.

/7/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, 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--

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES(.)

/8/ IN THIS REGARD, SEE THE HOUSE COMMITTEE REPORT CONCERNING THE
MANAGEMENT RIGHTS PROVISION, WHICH STATED THAT SECTION 7106 WAS INTENDED
IN PART "TO PRESERVE THE ESSENTIAL PREROGATIVES AND FLEXIBILITY FEDERAL
MANAGERS MUST HAVE." H.R. REP. NO. 95-1403, 95TH CONG., 2ND SESS.
43-44(1978). SEE ALSO THE STATEMENT OF CONGRESSMAN UDALL CONCERNING HIS
SUBSTITUTE AMENDMENT FOR THE HOUSE COMMITTEE BILL, WHEREIN HE
CHARACTERIZED THE SUBSTITUTE AS "BASICALLY A BILL TO GIVE MANAGEMENT THE
POWER TO MANAGE AND THE FLEXIBILITY THAT IT NEEDS." 124 CONG.REC.H9633
(DAILY ED. SEPT. 13, 1978).

/9/ COMPARE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 255(1979) AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3804 AND
FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO, ILLINOIS, 7 FLRA NO.
34(1981), IN WHICH THE AUTHORITY FOUND PROPOSALS INSURING UNION INPUT TO
THE FINAL AGENCY DECISION, WHILE PRESERVING THE INTEGRITY OF THE PROCESS
WHEREBY MANAGEMENT REACHES THAT DECISION, WITHIN THE DUTY TO BARGAIN.
THE AUTHORITY ALSO NOTES THAT THE PROPOSAL IN THE INSTANT CASE DOES NOT
INVOLVE LABOR-MANAGEMENT COMMITTEES TO DEAL WITH MATTERS WHICH ARE
THEMSELVES WITHIN THE DUTY TO BARGAIN.