**56 FLRA No. 184**

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109\
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS\
CONNECTICUT HEALTHCARE SYSTEM\
NEWINGTON, CONNECTICUT\
(Agency)

0-NG-2564

[\_\_\_\_\_]{.underline}

DECISION AND ORDER ON\
NEGOTIABILITY ISSUES

January 12, 2001

[\_\_\_\_\_]{.underline}

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and
Carol Waller Pope, Members.

# I.     Statement of the Case 

      This case is before the Authority on a negotiability appeal filed
by the Union under § 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of two proposals. The Agency filed a statement of
position, to which the Union did not respond.

      For the reasons which follow, we find that Proposal 1 is
negotiable at the election of the Agency and that Proposal 2 is within
the Agency\'s duty to bargain.

# II.     Background 

      The Union\'s proposals were submitted in response to the Agency\'s
decision to change the tours of duty of five administrative health
technicians. The technicians currently have a tour that starts at 7:30
a.m. However, \"to better meet the needs of the areas administratively
supported by health technicians\[,\]\" the Agency assigned four of the
technicians to tours that begin at 8:00 a.m. and one of the technicians
to a tour that begins at 8:30 a.m. Petition for Review, Attachment 4.

# III.     Proposals  [\[n1\]](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v56/#25874)  

> Proposal 1
>
> The Union proposes that the Employer maintain the original schedule
> and address occasional patient care issues through the use of
> overtime/compensatory time as applicable.
>
> Proposal 2
>
> The Union proposes that the Employer explore the use of AWS to
> alleviate patient care issues.

# IV.     Positions of the Parties 

## A.     Agency 

      The Agency claims that the Union\'s proposals affect management\'s
right to determine the mission, budget, organization, number of
employees, and internal security practices of the Agency under §
7106(a)(1). The Agency also claims that the Union\'s proposals are
negotiable at its election under § 7106(b)(1) and that it does not elect
to bargain over them.

      With regard to the Union\'s first proposal, the Agency asserts
that the use of overtime and compensatory time would interfere with its
management rights under § 7106(a)(1). As the Agency explained in a
letter to the Union, \"the underlying purpose of the tour changes is to
provide better customer service to \[V\]eteran patients through
alignment of employee tours of duty with those primary hours during
which \[V\]eterans are scheduled to receive medical services and to more
efficiently operate its healthcare programs.\" Petition, Attachment 2.
Even if the proposal did not interfere with the fulfillment of its
mission, the Agency maintains that it would not promote the efficiency
of the government to utilize overtime or compensatory time.

      With regard to the Union\'s second proposal, which concerns the
use of AWS, the Agency submits that it is not within the duty to bargain
under § 7106(a)(1) or (b)(1) of the Statute. The Agency explains that
the clinics where the technicians work are currently open from 8:00 a.m.
to 4:30 p.m. According to the Agency, although there may be times that
patients are in the clinics beyond 4:30 p.m., it is a rare occasion and
the use of AWS in these circumstances is not
appropriate. [**\[n2\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v56/#25887) 
**\[ v56 p1044 \]**

## B.     Union 

      The Union did not file a response to the Agency\'s Statement of
Position. However, in its Petition for Review, the Union asserts that
Proposal 1 is an appropriate arrangement offered in response to the
Agency\'s \"continual and continuing changes\" to the technicians\'
tours of duty. According to the Union, these changes in the
technicians\' tours of duty affect such issues as outside employment,
transportation, and childcare. With regard to Proposal 2, the Union
asserts that it was offered as an Alternative Work Schedule Arrangement
pursuant to § 7130 of the Statute. The Union also submits that the
proposals are within the duty to bargain under § 7106(b)(1) of the
Statute.

# V.     Proposal 1 

## A.     Meaning of the Proposal 

      The plain wording of the Union\'s first proposal would require the
Agency to maintain the original schedule of the five administrative
health technicians and to use overtime and compensatory time to address
patient care issues. The Union explains in its Petition for Review that
Proposal 1 was intended to \"allow for optimal employee working
conditions while ensuring \[that\] patient care obligations \[are met\]
within budgetary restraints.\" Petition at 3.

## B.     Analytical Framework for Resolving Negotiability Disputes Under § 7106(a) and (b) of the Statute 

      In *AFGE, HUD Council of Locals 222, Local 2910*, 54 FLRA 171,
177-78 n.10 (1998), the Authority clarified the approach it will follow
in resolving negotiability disputes where the parties disagree as to
whether a proposal comes within the terms of § 7106(a) or § 7106(b) of
the Statute. Where an agency claims that a proposal affects a management
right under § 7106(a), and a union disagrees or claims that the proposal
is within the duty to bargain under § 7106(b)(2) and/or (3), as well as
being electively negotiable under § 7106(b)(1), the Authority will first
resolve those claims that would determine if a proposal is within the
duty to bargain, and then, if necessary, address those claims that would
determine if a proposal is electively negotiable. *See* *NAGE, Local
R1-109*, 54 FLRA 521, 526-28 (1998).

      In this case, the Union does not dispute the Agency\'s contention
that Proposal 1 affects management\'s rights under § 7106(a)(1) of the
Statute. Therefore, we analyze below whether a claim has been raised and
established that Proposal 1 is within the duty to bargain under §
7106(b). [**\[n3\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v56/#25898) *See
NAGE, Local R4-45*, 55 FLRA 370, 371-72 (1999).

## C.     Proposal 1 Does Not Constitute an Appropriate Arrangement under § 7106(b)(3) of the Statute 

      In determining whether a proposal is an appropriate arrangement,
the Authority follows the analysis set forth in *NAGE, Local R14-87*, 21
FLRA 24 (1986) (*KANG*). Under this analysis, the Authority first
determines whether the proposal is intended to be an \"arrangement\" for
employees adversely affected by the exercise of a management right. *See
also United States Dep\'t of the Treasury, Office of the Chief Counsel,
Internal Revenue Serv. v. FLRA*, 960 F.2d 1068, 1073 (D.C. Cir. 1992).
To establish that a proposal is an arrangement, a union must identify
the effects or reasonably foreseeable effects on employees that flow
from the exercise of management\'s rights and how those effects are
adverse. *See* *KANG*, 21 FLRA at 31. Proposals that address purely
speculative or hypothetical concerns, or that are unrelated to
management\'s exercise of its reserved rights, do not constitute
arrangements. *See, e.g.*, *NAGE, Local R1-100*, 39 FLRA 762, 766
(1991). The claimed arrangement must also be sufficiently \"tailored\"
to compensate only those employees suffering adverse effects
attributable to the exercise of management\'s rights. *See* *id.*

      If the proposal is an arrangement that is sufficiently tailored,
the Authority then determines whether it is appropriate, or whether it
is inappropriate because it excessively interferes with the relevant
management right(s). *KANG*, 21 FLRA at 31-33. In doing so, the
Authority weighs the benefits afforded to employees under the
arrangement against the intrusion on the exercise of management\'s
rights. *Id.* **\[ v56 p1045 \]**

      In this case, the Union does not explain, and the proposal does
not by its terms address, the manner in which it would compensate for
the adverse affect resulting from the exercise of a management right.
Where a union offers no argument or authority to support an assertion
that a particular proposal is within the duty to bargain under §
7106(b), the Authority will not consider the assertion. *See American
Federation of State, County & Municipal Employees, Local 2910*, 53 FLRA
1334, 1342 (1998) (*AFSCME Local 2910*) and the cases cited therein
(rejecting a union\'s bare assertion that a proposal was an appropriate
arrangement under § 7106(b)(3)). We, therefore, reject the Union\'s
assertion that Proposal 1 constitutes an appropriate arrangement under §
7106(b)(3). [**\[n4\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v56/#25905) 

## D.     Proposal 1 is Negotiable at the Election of the Agency under § 7106(b)(1) 

      The Union has asserted that both of its proposals concern matters
included in § 7106(b)(1) of the Statute. Although the Union provides no
explanation for this assertion, the Agency does not contest it. Indeed,
the Agency asserts that the Union\'s proposals involve the technicians\'
tours of duty, which it has elected not to bargain over under
§ 7106(b)(1). [**\[n5\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v56/#25910) In
these circumstances, we conclude that the proposal is negotiable at the
election of the Agency. *See United States Dep\'t of Commerce, Patent
and Trademark Office*, 53 FLRA 858, 870 (1997) (agency\'s failure to
present any grounds for concluding that management action did not
concern a matter subject to § 7106(b)(1) warrants conclusion that the
action did concern a § 7106(b)(1) matter).

# VI.     Proposal 2 

## A.     Meaning of the Proposal 

      Consistent with its plain wording, Proposal 2 would require the
Agency to consider the use of alternative work schedule arrangements for
the five affected technicians in addressing patient care issues.

      The Union offers no specific explanation of this proposal.
However, during the parties\' post-petition telephone conference, the
Union clarified that Proposal 2 was offered as an alternative to
Proposal 1. Conference Report at 2. As it stated with regard to Proposal
1, the Union also states that Proposal 2 was intended to \"allow for
optimal employee working conditions while ensuring \[that\] patient care
obligations \[are met\] within budgetary constraints.\" Petition at 3.

## B.     Whether Proposal 2 Affects Management Rights under § 7106(a) of the Statute 

      As its second proposal, the Union proposes that \"the Employer
explore the use of AWS (Alternative Work Schedules) to alleviate patient
care issues.\" Petition, Attachment 3. In response, the Agency asserts
that the use of AWS would not be appropriate because the clinics where
the technicians work are operated between the hours of 8:00 a.m. and
4:30 p.m. The Agency further asserts that the proposal would interfere
with its management rights under § 7106(a)(1).

      The Federal Employees Flexible and Compressed Work Schedules Act
of 1982 (Work Schedules Act) provides that an exclusive representative
may negotiate with an agency for the establishment of flexible and
compressed work schedules for bargaining unit employees. 5 U.S.C. §
6130(a)(1). Consistent with the legislative history, the Authority has
held that alternative work schedules for bargaining unit employees are
\"fully negotiable\" subject only to the Work Schedules Act or other
laws superseding it. *AFGE, Local 1934*, 23 FLRA 872, 873-74 (1986)
(*Lowry*), *modified as to other matters*, *NTEU, Chapter 24*, 50 FLRA
330, 333 n.2 (1995). The Authority has consistently held since *Lowry*
that proposals seeking to negotiate alternative work schedules are
within the duty to bargain and enforceable under the Statute. *E.g.,*
NTEU*,* 39 FLRA 27, 34 (1991); *United States Environmental Protection
Agency, Research Triangle Park, N.C.*, 43 FLRA 87, 92-93 (1991).

      By its terms, the Union\'s second proposal requires only that the
Agency [explore]{.underline} the use of AWS to alleviate patient care
issues but does not obligate the Agency to negotiate over such
schedules. Nevertheless, as discussed above, with few limitations, AWS
schedules are fully negotiable under Authority precedent. The Agency\'s
contrary argument is limited to a claimed violation of the management
rights provision of the Statute and, therefore, provides no basis for
finding that the proposal is contrary to law. *E.g.*, *NTEU*, 39 FLRA
at 34; *NFFE, Local 642*, 27 FLRA 862, 867 (1987), *enforced sub nom.*
*Bureau of Land Management v. FLRA* , 864 F.2d 89, 91-92 (9th Cir. 1988)
(rejecting agency\'s arguments that the establishment of alternative
work schedules conflicts with management rights under the **\[ v56 p1046
\]** Statute). As such, we find that the Union\'s second proposal is
within the duty to bargain.

# VII.     Order 

      The Union\'s first proposal is bargainable only at the election of
the Agency. The Union\'s second proposal is within the duty to bargain.
Therefore, the Agency shall, upon request, or as otherwise agreed to by
the parties, negotiate over Proposal 2.

**Footnote \# 1** for 56 FLRA No. 184

   The record in this case has been supplemented through a post-petition
telephone conference among the parties and Authority representatives
pursuant to § 2424.23 of the Authority\'s Regulations. Consequently, the
Record of the Conference, in which the Union modified its original
proposals, has been considered by the Authority. *See* *id.* at
§ 2424.23(c).

**Footnote \# 2** for 56 FLRA No. 184

   Although not relevant to this proceeding, the Agency adds that the
change in technicians\' tours of duty was de minimus and should have
caused no adverse effect. *See* Statement of Position at 3.

**Footnote \# 3** for 56 FLRA No. 184

   Our determination in this regard is based solely upon the Union\'s
lack of response to the Agency\'s assertions. We do not adopt the
Agency\'s interpretation of its management rights as set forth in §
7106(a) of the Statute and its application of that section to the
Union\'s first proposal. Indeed, it has long been established under
Authority precedent that the right to determine the particular duties to
be assigned, when work assignments will occur, and to whom or what
position the duties will be assigned concerns the right to assign work
under § 7106(a)(2)(B). *See, e.g., NTEU*, 3 FLRA 769, 775 (1980),
*aff\'d sub nom. Nat\'l Treasury Employees Union v. FLRA*, 691 F.2d 553
(D.C. Cir. 1982).

**Footnote \# 4** for 56 FLRA No. 184

   It is well established in this regard that the parties bear the
burden of creating a record upon which the Authority can make a
negotiability determination. *See e.g., AFSCME Local 2910*, 53 FLRA at
1342; *NAGE, Local R3-10*, 53 FLRA 139, 141-42 (1997).

**Footnote \# 5** for 56 FLRA No. 184

   Absent the Agency\'s apparent concession in this regard, Member
Cabaniss would find that the Union\'s § 7106(b)(1) claim is a bare
assertion and, therefore, would not address it.