16:0369(60)NG - NFFE Local 1979 and Forest Service, San Dimas Equipment Development Center -- 1984 FLRAdec NG



[ v16 p369 ]
16:0369(60)NG
The decision of the Authority follows:


 16 FLRA No. 60
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1979
 Union
 
 and
 
 U.S. FOREST SERVICE,
 SAN DIMAS EQUIPMENT
 DEVELOPMENT CENTER
 Agency
 
                                            Case No. O-NG-533
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority pursuant to section 7105(a)(2)(D) and (E) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 raises issues as to the negotiability of four provisions of a local
 supplemental agreement, disapproved by the Agency pursuant to Article
 9.7(b) of the parties' Master Agreement.  /1/ Upon careful consideration
 of the entire record, including the parties' contentions, the Authority
 makes the following determinations.
 
                                Provision 1
 
                                ARTICLE 30F
 
                               MISCELLANEOUS
 
          2.  Information Distribution:  Management agrees to route all
       memorandums, directives, newsletters or other documents received
       by them from other Government agencies, the Washington Office of
       the Forest Service, the Regional Office, the Office of Personnel
       Management, etc., that contain or could contain information which
       does or may effect career development, employment conditions,
       employment environment or employee benefits to the President of
       the Professional Association or his delegated representative.
       Management further agrees to inform the President of the
       Professional Association where the aforementioned information and
       documents are kept (filed) at the Equipment Development Center and
       grants access to these documents by the President of the
       Professional Association or his delegated representative when
       access is requested.  (Footnote deleted.)
 
    Provision 1 of the local parties' agreement essentially requires
 management to transmit to the Union "all" documents which it receives
 that contain or "could" contain information that relates or "may" relate
 to the conditions of employment of unit employees and to provide Union
 representatives access to the place where those documents are kept.
 Thus, under the express terms of the provision, the only documents which
 management would be entitled to withhold from the Union are those which
 could not possibly contain any information that might relate to unit
 employees' conditions of employment.  The Agency contends that the broad
 wording of the provision would require management to disclose
 information which under law, i.e., section 7114(b)(4)(C) of the Statute,
 it is not obligated to give to the Union.  /2/
 
    Section 7114(b)(4) of the Statute generally provides that an agency,
 pursuant to its obligation to negotiate in good faith under section
 7114(a), must furnish to a union data which is necessary to enable the
 union to carry out its representational responsibilities to the extent
 not prohibited by law.  See, e.g., American Federation of Government
 Employees, AFL-CIO, National Immigration and Naturalization Service
 Council and Department of Justice, Immigration and Naturalization
 Service, 8 FLRA 347 (1982) (Union Proposal 9) reversed as to other
 matters sub nom. Department of Justice, Immigration and Naturalization
 Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), and U.S. Customs Service
 Region VII, Los Angeles, California and National Treasury Employees
 Union, 10 FLRA 251 (1982).  However, subsection (C) of that section
 exempts from the agency's obligation data which constitutes "guidance,
 advice, counsel or training provided for management officials or
 supervisors, relating to collective bargaining." /3/ Clearly, "guidance"
 and "advice" of this nature "could contain" information that "may"
 relate to the conditions of employment of unit employees within the
 meaning of Provision 1.  The Union's claim that Provision 1 does not
 encompass such material is contrary to the broad language of the
 provision and is not persuasive.  As written, the provision extends to
 information which management has no statutory obligation to provide to
 the Union, i.e., which is exempt from disclosure.  In thus requiring
 management to furnish information which, under section 7114(b)(4)(C) of
 the Statute, is exempt from disclosure, Provision 1 is inconsistent with
 law /4/ and outside the duty to bargain.  /5/ Cf. National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 6 FLRA 508, 509-10 (1981) (proposal which does not incorporate
 statutory limitations on reimbursement for training expenses is outside
 the duty to bargain).
 
                                Provision 2
 
                                ARTICLE 30G
 
                               MISCELLANEOUS
 
          Technical Dissents
 
          Dissents to technical decisions, which may be submitted from
       time to time by Center employees, will be received and stored in
       the appropriate Center files for 20 years by Local management and
       made available to the employee.  Inclusion in the dissent file
       shall be deemed constructive notice to the Director and to the
       employee's supervisor.
 
    The record indicates that the mission of the particular installation
 involved in this case is "to create new or substantially improved
 equipment, systems, materials, processes, techniques, and procedures
 that will be suitable to meet the objectives of advanced (f)orest
 management utilization . . . ." In essence, therefore, the work of the
 installation is technical research and testing and the work product
 consists of reports thereon which are submitted to higher levels of
 management within the Agency.  Thus, in this context, Provision 2 would
 require the Agency to accept technical dissents, presumably by employees
 who worked on the projects involved, to the reports which are submitted
 to management and to retain those dissents on file with the report.
 
    The Agency contends that the policy regarding submission and
 retention of dissents to technical reports concern the "methods" by
 which it performs its work within the meaning of section 7106(b)(1).
 /6/ As already indicated, a significant aspect of the work of the
 installation involves employees reporting to management officials on the
 results of their research and testing projects, including any
 conclusions and recommendations.  Thus, it is clear that the policy as
 to the submission and retention of technical dissents is part of the
 Agency's decision to adopt a particular way of reporting.  Therefore,
 Provision 2 directly concerns the manner in which the Agency performs
 the function of preparing and communicating technical information.  The
 decision to allow individual employees who have worked on a given
 project to submit separate dissenting views to the final report
 concerning that project represents only one of a number of ways in which
 the Agency could take into account differing opinions in compiling its
 technical reports.  It is concluded, therefore, that requiring the
 Agency to provide for technical dissents as set forth in Provision 2
 concerns the "methods" by which it performs work and, as such, is a
 matter about which it can elect to negotiate under section 7106(b)(1) of
 the Statute.  See National Treasury Employees Union and Internal Revenue
 Service, 6 FLRA 522 (1981) (Union Proposals IV-V);  National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 7 FLRA 235 (1981) (Union Proposals 1-5).  /7/
 
    Finally, in the circumstances of this case, a question arises as to
 whether the Agency has elected to negotiate by virtue of the apparent
 agreement on the provision by the parties at the local level.  In this
 regard, the record indicates that the local agreement is a supplement to
 a controlling agreement at a higher level within the Agency, which
 controlling agreement provides that local supplements are subject to the
 approval of the parties at the level of exclusive recognition.  /8/
 Thus, under the terms of the controlling agreement, the local agreement
 would not be final and binding until approved at the level of exclusive
 recognition.  The Agency, therefore, having disapproved Provision 2 here
 in dispute pursuant to the controlling agreement, has not irrevocably
 elected to bargain on that provision.  Consequently, Provision 2 is
 outside the duty to bargain.  See American Federation of Government
 Employees, AFL-CIO, National Immigration and Naturalization Service
 Council and Department of Justice, Immigration and Naturalization
 Service, 8 FLRA 347 (1982) (Union Proposal 15).
 
                                Provision 3
 
                                ARTICLE 30I
 
                               MISCELLANEOUS
 
          Authorship
 
          Management recognizes that the individual professional
       employees at the Equipment Development Center in San Dimas are
       entitled to professional recognition for the professional work
       which they accomplish.  For this reason, Management agrees:  (a)
       That the Project Leader, or the Engineer and/or Forester who does
       the majority of the technical work on any project upon which is
       reported, shall be entitled to be the first author of that report;
        (b) that all earned academic titles, regardless of the field, as
       well as all professional registrations (i.e., professional
       engineer, registered land surveyor, professional forester, etc.)
       may be used at the employee's option on all official documents and
       correspondence.
 
    Provision 3 would essentially require the Agency to adopt a
 particular format for its technical reports, i.e., one which involved
 the designation of responsibility or authorship in a particular way.  As
 indicated in consideration of Provision 2 above, the work of the local
 installation here involved is technical research and the preparation of
 reports thereon.  A provision which directly concerns the way or manner
 in which work is to be done involves the methods and means of performing
 such work within the meaning of section 7106(b-(1).  In this regard, the
 determination of the format in which reports will be prepared, i.e., for
 example, whether authorship will be designated and, if so, the form that
 it will take, directly concerns the way or manner in which the
 preparation of reports will be done.  Thus, Provision 3 concerns the
 methods by which the Agency performs its function of technical
 reporting, a matter about which the Agency may elect, but is not
 obligated, to negotiate under section 7106(b)(1).  Further, as to
 whether the Agency has, in the circumstances of this case, elected to
 negotiate on this matter, for the reasons set forth in consideration of
 Provision 2, the Agency has not so elected.  Therefore, Provision 3 is
 outside the duty to bargain.  /9/
 
                                Provision 4
 
                                Article 30B
 
                               Miscellaneous
 
          2.  If lodging cannot be located which has ready and close
       access (walking distance not to exceed 1/4 mile) to reasonably
       priced and wholesome food facilities, management shall authorize
       use of official vehicles to transport the traveler to and from a
       restaurant of the traveler's choice.  The traveler shall also be
       authorized, should an official vehicle not be available,
       reimbursement for personal vehicle mileage, care fare, cab fare,
       or other transportation expenses to travel to and from the
       traveler's place of lodging and a location of the traveler's
       choice for dining.
 
    The Agency contends, without controversion, that there is no duty to
 bargain at the local level on the subject matter of Provision 4 because
 Article 9.7.A of the parties' Master Agreement limits supplemental
 agreements to local working conditions and policies within the authority
 of the local manager.  /10/ Specifically, the Agency contends that the
 subject matter of Provision 4 is not within the authority of the local
 manager to change because it is prescribed by a higher level regulation.
  /11/ The Union does not dispute the Agency's contention to the effect
 that, under the parties' Master Agreement, policies prescribed by higher
 level regulation are not subject to negotiation at the local level.  It
 appears to argue only that Provision 4 would not change those policies
 and, thus, in effect that the Master Agreement's limitation on the scope
 of local negotiations is not applicable.
 
    Provision 4, on its face, would authorize the use of official
 vehicles, or reimbursement, for travel to and from restaurants "of the
 traveler's choice," under the circumstances where "reasonably priced and
 wholesome food facilities" are not available within walking distance of
 one-quarter mile.  The higher level regulation relied on by the Agency
 restricts the use of official vehicles, or reimbursement, to travel to
 and from "the nearest available facility" providing "suitable meals."
 Thus, negotiation of Provision 4 would require the local manager to
 change the policy established in the higher level regulation in that it
 would authorize travel beyond what is permitted under the regulation, to
 restaurants of the traveler's choice, rather than to the nearest
 available facility.  Therefore, contrary to the Union, Provision 4 is
 inconsistent with the regulation and the limitation on the obligation to
 bargain at the local level imposed by Article 9.7.A of the Master
 Agreement is applicable.
 
    Hence, since there is no duty to bargain between the parties at the
 local level under the Master Agreement, issues as to the negotiability
 of Provision 4 under the Statute are not appropriate for resolution by
 the Authority.  The Authority therefore concludes that the negotiability
 issue raised as to Provision 4 in the instant appeal is moot.  See
 National Association of Agriculture Employees, Branch 11 and Department
 of Agriculture, 14 FLRA No. 100 (1984).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Provisions 1-4 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., October 31, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7114(c)(4) of the Statute provides as follows:
 
    Sec. 7114.  Representation rights and duties
 
                                  * * * *
 
          (c)(4) A local agreement subject to a national or other
       controlling agreement at a higher level shall be approved under
       the procedures of the controlling agreement or, if none, under
       regulations prescribed by the agency.
 
 
    /2/ Section 7114(b)(4) of the Statute provides as follows:
 
    Sec. 7114.  Representation rights and duties
 
                                  * * * *
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                  * * * *
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involve, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonable available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining(.)
 
 
    /3/ While the Authority has not construed the scope of this
 exemption, it has been judicially interpreted to refer to the Office of
 Personnel Management's (OPM) advice on negotiating strategies and
 tactics, guidance on evaluating union proposals, and advice on
 negotiating strategy and tactics in defense of agency regulations under
 the compelling need requirements of the Statute.  National Treasury
 Employees Union, et al. v. Office of Personnel Management, No. 79-0695
 (D.D.C. July 9, 1979).  (This case arose under the Freedom of
 Information Act (FOIA), 5 U.S.C. 552, but involved interpretation of
 section 7114(b)(4)(C) of the Statute pursuant to that provision of the
 FOIA, 5 U.S.C. 552(b)(3), which exempts from disclosure material which
 is specifically exempted by statute other than the FOIA.) See also
 National Treasury Employees Union, et al. v. U.S. Customs Service, et
 al., No. 79-1208 (D.D.C. Feb. 18, 1982).
 
 
    /4/ Section 7117(a)(1) of the Statute provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /5/ Due to the result herein, it is unnecessary to consider the
 Agency's additional allegation that Provision 1 is inconsistent with the
 Privacy Act.
 
 
    /6/ Section 7106(b)(1) provides, in relevant part, as follows:
 
    Sec. 7106.  Management rights
 
                                  * * * *
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency . . . on the technology,
       methods, and means of performing work(.)
 
 
    /7/ Due to the result herein, it is unnecessary to consider the
 Agency's additional allegation as to the nonnegotiability of Provision
 2.
 
 
    /8/ According to the record, Article 9.7(b) of the controlling
 agreement reserves the right of the parties at the level of exclusive
 recognition to approve local supplemental agreements.  Union Petition
 for Review at 1.  Agency Statement of Position at 1.
 
 
    /9/ With regard to the Agency's additional contention as to section
 7106(a)(2)(B), the designation of primary authorship does not concern an
 assignment of work.  It is, at most, an acknowledgement of the
 performance of work already assigned.
 
 
    /10/ Article 9.7, Local Agreements, of the parties' Master Agreement
 provides:
 
          A. Local agreements subordinate to the master labor agreement
       may be negotiated between the local parties.  The purpose of a
       local agreement shall be to cover local wo