15:0717(141)NG - AFSCME Locals 2910 and 2477 and Library of Congress -- 1984 FLRAdec NG

 15 FLRA No. 141
 
 AMERICAN FEDERATION OF
 STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, LOCALS 2910 and 2477
 Union
 
 and
 
 LIBRARY OF CONGRESS
 
 Agency
 
                                            Case No. O-NG-692
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents the issue
 of the negotiability of the following Union proposal:
 
          The library agrees to post 10% of its annual vacancies as
       permanent part-time positions in an attempt to reach the goal of
       8% permanent part-time positions.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 /1/ The Union's proposal requires the Agency to post 10% of its annual
 vacancies as permanent part-time positions in an attempt to reach the
 goal of 8% permanent part-time positions.  The Agency contends that the
 proposal requires selection of part-time employees which it contends
 violates section 7106(b)(1) of the Statute and the Federal Employees
 Part-time Career Employment Act (P.L. 95-437), 5 U.S.C. 3402(a)(1)(c).
 The Union indicates that the language of the proposal is clear and only
 requires the Agency to give consideration to filling its vacancies on a
 part-time basis.  In this regard, the proposal merely requires posting
 of a certain percentage of vacancies, leaving to the Agency the
 determination of which and how many such vacancies will be filled with
 employees who work on a part-time basis in tours of duty set by the
 Agency.  Furthermore, the Agency would retain full discretion to
 determine the number of part-time vacancies which would be posted to any
 organizational subdivision, work project or tour of duty.  Thus, the
 proposal is materially identical in effect to the first sentence of the
 proposal in National Treasury Employees Union and Internal Revenue
 Service, 2 FLRA 281 (1979).  In that case, the Authority found that the
 first part of the proposal would not prevent the agency from acting at
 all to exercise its statutory right to fill or not fill vacant
 positions, but only would establish a procedural requirement whereby a
 certain number of vacant positions would in the first instance be
 announced as upward mobility positions.  Similarly, the proposal herein
 requires the Agency only to announce a vacancy and to give consideration
 to filling the vacancy on a part-time basis.  It would not prevent
 management from establishing the tours of duty and positions and
 consequent number of employees it deems necessary to achieve the mission
 and goals of the Agency and its organizational units, contrary to the
 Agency's argument.  Hence, the proposal would not conflict with
 management's rights under section 7106(b)(1) but, rather, is within the
 duty to bargain under section 7106(b)(2) of the Statute.
 
    The Agency additionally contends that the proposal is inconsistent
 with the Federal Employees Part-time Career Employment Act of 1978
 because Congress intended that the number of part-time opportunities
 created would be established by an annual goal set at the discretion of
 the agency.  However, the Authority has consistently held that an agency
 has a duty to bargain over matters affecting the conditions of
 employment of the bargaining unit to the extent such matters are within
 an agency's discretion.  See American Federation of Government
 Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 31 (1983);
 American Federation of Government Employees, AFL-CIO, Local 2578 and
 General Services Administration, National Archives and Records Service,
 Washington, D.C., 3 FLRA 604 (1980).  Furthermore, the proposal merely
 sets forth a goal for the number of part-time positions, but does not
 require the Agency to take or refrain from taking any specific action
 towards the achievement of that goal.
 
    The Agency additionally argues that the proposal is not limited only
 to bargaining unit positions and is thus outside the duty to bargain.
 Neither the express language of the proposal nor the Union's stated
 intent requires the proposal to be applicable to non-bargaining unit
 employees.  A proposal is presumed to be intended to apply only to
 bargaining unit employees in the absence of language to the contrary,
 unless the record indicates otherwise.  See American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, Washington, D.C., 8 FLRA 460 (1982) (Proposal 1).
 
    Accordingly, 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
 proposal.  /2/
 
    Issued, Washington, D.C., August 28, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency's contention that the Union's petition for review
 should be dismissed for failure to comply with the requirement of
 section 2424.4(a)(2) of the Authority's Rules and Regulations that the
 Union furnish an explicit statement of the meaning of the proposal
 cannot be sustained.  Five days after the petition was filed, the Union
 submitted a clarifying letter stating that the proposal "is clear on its
 face" and "does not require that those positions which are posted as
 part-time actually must be filled." The Authority finds that this
 submission corrected the deficiency and adopts the Union's reasonable
 interpretation as consistent with the clear meaning of the proposal.
 Therefore, the Union's petition for review is properly before the
 Authority.
 
 
    /2/ In finding this proposal to be within the duty to bargain, the
 Authority makes no judgment as to its merits.