American Federation of Government Employees, Local 32 (Union) and Office of Personnel Management, Washington, DC (Agency)

 

 8 FLRA No. 87
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-329
 
                 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).
 THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL:
 
                              UNION PROPOSAL
 
    THE AGENCY WILL TAKE WHATEVER ACTION IT CAN TO ENSURE THAT PRICES IN
 THE CAFETERIA DO NOT
 
    RISE FASTER THAN THE INCOME OF EMPLOYEES.  IN PARTICULAR, THE AGENCY
 WILL POST ON THE BULLETIN
 
    BOARD OUTSIDE THE CAFETERIA A STATEMENT OF THE PERCENTAGE INCREASE IN
 PRICES, MONTH BY MONTH
 
    AND CUMULATIVE FOR THE YEAR.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER THE STATUTE BECAUSE IT CONCERNS MATTERS OUTSIDE THE
 DISCRETION OF THE AGENCY OR IS INCONSISTENT WITH GOVERNMENT-WIDE RULES
 AND REGULATIONS, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION PROPOSAL CONCERNS MATTERS WITHIN THE
 AGENCY'S DISCRETION AND IS NOT INCONSISTENT WITH THE RULES AND
 REGULATIONS RELIED UPON BY THE AGENCY.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)),
 IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
 TO BY THE PARTIES) BARGAIN CONCERNING THE UNION PROPOSAL.  /2/
 
    REASONS:  THE STATUTE ESTABLISHES A DUTY TO BARGAIN OVER MATTERS
 CONCERNING CONDITIONS OF EMPLOYMENT TO THE EXTENT THEY ARE NOT
 INCONSISTENT WITH FEDERAL LAW, GOVERNMENT-WIDE RULE OR REGULATION, OR
 AGENCY RULE OR REGULATION FOR WHICH A COMPELLING NEED EXISTS.  /3/
 
    NOTHING IN THE STATUTE LIMITS THIS DUTY TO MATTERS OVER WHICH AN
 AGENCY HAS TOTAL DISCRETION.  THUS, EXCEPT WHERE PROVIDED OTHERWISE BY
 LAW OR REGULATION, TO THE EXTENT THAT AN AGENCY HAS DISCRETION WITH
 RESPECT TO A MATTER AFFECTING THE CONDITIONS OF EMPLOYMENT OF ITS
 EMPLOYEES, THAT MATTER IS WITHIN THE DUTY TO BARGAIN.  NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
 DISTRICT, 3 FLRA 737 (1980).
 
    MORE PARTICULARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C.,
 6 FLRA NO. 76 (1981), THE AUTHORITY HELD A PROPOSAL CONCERNING THE
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES TO BE WITHIN THE
 DUTY TO BARGAIN, BECAUSE THE AGENCY FAILED TO SUPPORT ITS CLAIM BY
 REFERENCE TO LAW OR REGULATION THAT ITS DISCRETION TO IMPLEMENT THE
 PROPOSAL WAS LIMITED.  THE AUTHORITY THEN WENT ON TO ADD THAT THE LACK
 OF TOTAL DISCRETION TO IMPLEMENT ANY AGREEMENT REACHED IS NOT A BASIS
 FOR FINDING AN OTHERWISE NEGOTIABLE PROPOSAL TO BE OUTSIDE THE DUTY TO
 BARGAIN.  LACKING TOTAL DISCRETION, THE AGENCY'S DUTY TO BARGAIN WOULD
 EXTEND TO SUCH MATTERS AS ARE WITHIN ITS DISCRETION, INCLUDING
 APPROPRIATE REQUESTS TO THIRD PARTIES FOR APPROVAL TO IMPLEMENT THE
 AGREEMENT.  SEE ALSO AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
 (AND THE CASE CONSOLIDATED THEREWITH), 7 FLRA NO. 89 (1982).
 
    IN EACH OF THE CITED DECISIONS, THE AGENCY HAD FAILED TO DEMONSTRATE
 THAT IT DID NOT HAVE DISCRETION TO IMPLEMENT THE MATTERS PROPOSED FOR
 COLLECTIVE BARGAINING, AT LEAST IN CONJUNCTION WITH THE APPROVAL OF A
 THIRD PARTY SOUGHT AND RENDERED IN ACCORDANCE WITH APPLICABLE LAW AND
 REGULATIONS.  THESE DECISIONS THEREFORE WOULD NOT APPLY WHERE AN AGENCY
 DEMONSTRATED A TOTAL LACK OF DISCRETION TO IMPLEMENT A PROPOSAL, I.E.,
 WHERE THE PROPOSAL WOULD BE INCONSISTENT WITH LAW OR GOVERNMENT-WIDE
 RULE OR REGULATION, SUCH AS WHEN THE AGENCY'S REQUEST FOR APPROVAL,
 ITSELF, WOULD BE UNLAWFUL OR WHEN THE REQUEST WOULD BE FOR APPROVAL OF
 AN UNLAWFUL RESULT.
 
    SIMILARLY, THESE DECISIONS WOULD NOT APPLY TO PROPOSALS WHICH DO NOT
 CONCERN CONDITIONS OF EMPLOYMENT WITHIN THE MEANING OF THE STATUTE, AS,
 FOR EXAMPLE, MATTERS SPECIFICALLY PROVIDED FOR BY LAW OR WHICH WOULD
 REQUIRE MODIFICATION OF EXISTING LEGAL OR REGULATORY PROVISIONS.  SEE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
 GRAIN INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE,
 FEDERAL GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529 (1980),
 ENFORCED SUB NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS V. FEDERAL LABOR RELATIONS
 AUTHORITY, 653 F.2D 669 (D.C. CIR. 1981).  IN THIS CONNECTION, THE
 AUTHORITY HAS HELD A PROPOSAL CONCERNED WITH INFLUENCING LEGISLATIVE
 ACTION TO CHANGE CONDITIONS OF EMPLOYMENT TO BE OUTSIDE THE DUTY TO
 BARGAIN BECAUSE THE RELATIONSHIP BETWEEN POLITICAL EFFORTS TO INFLUENCE
 LEGISLATIVE ACTION, ON THE ONE HAND, AND CHANGES IN PERSONNEL POLICIES,
 PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS, ON THE OTHER HAND,
 IS, AT BEST, REMOTE AND SPECULATIVE.  NATIONAL ASSOCIATION OF AIR
 TRAFFIC SPECIALISTS AND DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION, 6 FLRA NO. 106 (1981) AT 6.  THIS ANALYSIS WOULD
 SIMILARLY APPLY TO PROPOSALS CONCERNED WITH INFLUENCING THE CONTENT OF
 GOVERNMENT-WIDE REGULATIONS TO AFFECT CONDITIONS OF EMPLOYMENT.
 
    IN LIGHT OF THE FOREGOING, THE QUESTION IN THE PRESENT CASE IS
 WHETHER, UNDER EXISTING LAW AND REGULATION, THE AGENCY HAS ANY
 DISCRETION WITH RESPECT TO THE MATTER PROPOSED TO BE BARGAINED.  THE
 PROPOSAL WOULD REQUIRE THE AGENCY TO "TAKE WHATEVER ACTION IT CAN" TO
 ENSURE THAT EMPLOYEE CAFETERIA PRICES (A CONDITION OF EMPLOYMENT) DO NOT
 RISE FASTER THAN EMPLOYEES' INCOME AND TO POST A MONTHLY STATEMENT
 LISTING THE PERCENTAGE OF INCREASE IN PRICES.  THE AGENCY CHARACTERIZES
 THE PROPOSAL AS REQUIRING IT TO BARGAIN OVER THE SETTING OF THE PRICES
 CHARGED IN THE CAFETERIA.  BASED ON THIS INTERPRETATION OF THE PROPOSAL
 IT ARGUES ESSENTIALLY THAT ONLY THE GENERAL SERVICES ADMINISTRATION
 (GSA), WHICH IS RESPONSIBLE UNDER REGULATION FOR BOTH NEGOTIATING AND
 ADMINISTERING THE CONTRACT FOR CAFETERIA SERVICES IN THE AGENCY'S OFFICE
 BU