17:0674(98)NG - AFGE Local 12 and Labor -- 1985 FLRAdec NG



[ v17 p674 ]
17:0674(98)NG
The decision of the Authority follows:


 17 FLRA No. 98
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12, AFL-CIO
 Union 
 
 and 
 
 DEPARTMENT OF LABOR 
 Agency
 
                                            Case No. 0-NG-776
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 raises issues
 concerning the negotiability of six Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          1a.  Vacancies under the reorganization will be limited to DIT
       (Directorate of Information Technology) employees and be filled
       from the top down to maximize the number of promotions in DIT.
 
          1d.  In addition to the co-op program, Management will provide
       four upward mobility positions for employees in DIT.
 
    In its Reply Brief, the Union asserts that Union Proposal 1a was
 "in-artfully drafted" and that it is merely intended to limit
 advertising of unit vacancies to the bargaining unit.  Therefore, in the
 Union's view, the proposal is negotiable because it does not require
 that vacancies be filled by unit employees.  However, the Authority has
 consistently held that it will not base a negotiability determination on
 a union's statement of intent which is inconsistent with the express
 language of the disputed proposal.  See, e.g., American Federation of
 Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
 Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981).  In
 this connection, the proposal makes no reference to vacancy
 announcements.  Moreover, in its negotiability determination and in its
 Statement of Position, the Agency based its position on its
 understanding that the proposal required the filling of bargaining unit
 vacancies with bargaining unit employees.  That interpretation was not
 "corrected" by the Union.  The Agency's interpretation is therefore
 deemed consistent with the language of the proposal and is adopted for
 the purpose of this decision.  Hence, Union Proposal 1a is to the same
 effect as those proposals the Authority has found nonnegotiable which
 sought to limit the selections for bargaining unit vacancies to
 bargaining unit employees.  The Authority has consistently held with
 respect to such proposals that they are inconsistent with management's
 right, pursuant to section 7106(a)(2)(C) of the Statute, to select from
 among properly ranked and certified candidates or from any other
 appropriate source.  See, e.g., National Federation of Federal Employees
 Local 1332 and Headquarters, U.S. Army Materiel Development and
 Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981) (Union
 Proposals III and IV).  Consequently, Union Proposal 1a is also outside
 the duty to bargain.
 
    Union Proposal 1d, in requiring that a specific number of positions
 be set aside as "upward mobility positions," is to the same effect as
 the proposal which was before the Authority in National Treasury
 Employees Union and Internal Revenue Service, 2 FLRA 281 (1979).  The
 Authority held that the portion of the disputed proposal requiring that
 a specified percentage of agency vacancies be filled as upward mobility
 positions was inconsistent with management's rights, pursuant to section
 7106(a)(2)(C) of the Statute, to select candidates and to fill
 positions.  Hence, based on Internal Revenue Service, and the reasons
 stated therein, Union Proposal 1d is outside the duty to bargain.
 
                             Union Proposal 2
 
          Performance Appraisal.  The reorganization will not be
       implemented until all employees have developed their performance
       standards based on their P.D. (position description) and signed
       them as accepted.  /2/
 
    The Union, in its Reply Brief, asserts that Proposal 2 is not
 intended "to alter the contractual process for establishing
 (performance) standards" prevailing prior to the bargaining unit's
 reorganization and relocation which occasioned the instant negotiations.
  However, based on the record, it appears that the parties' subsisting
 negotiated agreement provides for consultation between supervisor and
 employee concerning revised performance standards and permits an
 employee 10 working days to examine and consider the revised standards.
 The existing agreement does not require employee development of the
 standards nor employee acceptance of them as a condition to their
 implementation, as does the language of disputed Proposal 2.  /3/ On its
 face then, and contrary to the Union's statement of intent, Union
 Proposal 2 is to the same effect as Union Proposal 1 in National
 Association of Government Employees, Local R14-89 and Headquarters, U.S.
 Army Air Defense Center and Fort Bliss, Texas, 9 FLRA 1033 (1982).  The
 Authority found that proposal, which would have conditioned the
 abolishing of positions and redistributing of duties to other employees
 upon the approval by the personnel receiving the new work of revised
 critical elements and performance standards, to be inconsistent with
 management's rights, pursuant to section 7106(a)(2)(A) and (B) of the
 Statute, to direct employees and to assign work.  Consequently, based on
 U.S. Army Air Defense Center and Fort Bliss, and the reasons and cases
 cited therein, Union Proposal 2, herein, is outside the duty to bargain.
 
                             Union Proposal 3
 
          QUALITY CIRCLES.  Management and the Union will establish a
       joint study committee to explore the feasibility of Quality
       Circles in the DIT program, to facilitate the introduction of
       "modern systems."
 
    The Union asserts that its Proposal 3 responds to management's
 announced plan to introduce new technology, or "modern systems" into the
 bargaining unit.  Further, the Union states:
 
          The proposal is intended to have the parties establish a
       committee to explore the feasibility of quality circles in (the
       bargaining unit).  The proposal does not require that the agency
       negotiate at all, only that the agency discuss the possibility of
       quality circles with the union through an ad hoc committee
       structure.  /4/ (Footnote added.)
 
 Thus, the Union characterizes this proposal as a procedure, within the
 meaning of section 7106(b)(2), to be followed by management in
 exercising its reserved authority under the Statute.
 
    In agreement with the Union, and contrary to the Agency's position,
 the Authority finds that the proposal would not directly concern the
 technology, methods, and means of performing work, matters which may
 only be negotiated at management's election pursuant to section
 7106(b)(1) of the Statute.  That is, it does not appear on its face, nor
 does the Union's explanation compel the conclusion that the proposal
 would in any way impede the introduction by management of "modern
 systems." Rather, this proposal would only obligate the Agency to
 discuss with the Union the possibility of using quality circles to serve
 as a forum for evaluating employee concerns, suggestions, etc.,
 concerning the introduction of "modern systems." In this regard, the
 disputed proposal is to the same effect as the Union Proposal before the
 Authority in American Federation of Government Employees, AFL-CIO, Local
 2761 and U.S. Department of the Army, U.S. Army Adjutant General
 Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984) which sought
 establishment of a joint labor-management committee to serve as a forum
 for evaluating employee training needs and for formulating programs to
 meet those needs, without obligating the agency to bargain on the
 specific content of training.  The Authority concluded that the proposal
 was not inconsistent with any substantive agency rights, but, rather,
 constituted a negotiable procedure to be followed by management in
 exercising its substantive rights, within the meaning of section
 7106(b)(2) of the Statute.  Thus, based on U.S. Army Adjutant General
 Publication Center, and the reasons and cases cited therein, Union
 Proposal 3, herein, which also constitutes a procedure to be followed by
 management in exercising its rights, is within the Agency's obligation
 to bargain.  /5/
 
                             Union Proposal 4
 
          COMPETITIVE LEVELS.  Competitive levels will be structured to
       more clearly support the regulations, including (5 CFR) 351.403
       "all positions in a competitive area and in the same grade or
       occupational level which are sufficiently alike in qualification
       requirements, duties, responsibilities, pay schedules and working
       conditions so that an agency readily may assign the incumbent of
       any one position to any of the other positions without . . .
       unduly interrupting the work program."
 
          Management analyst and Computer Assistant (positions) will
       remain in the same competitive level they were in under the old
       organization.
 
    The Agency objects to the first paragraph of Union Proposal 4 on the
 basis that "the subject matter is already covered under governing
 regulations(.)" Furthermore, the Agency contends, "If (the Union)
 disagrees with the administration of the regulations by (the Agency) it
 can grieve, but it cannot renegotiate these regulations." /6/ It does
 not appear that the Agency's use of the term "renegotiate" is intended
 to imply that the first paragraph of the proposal is inconsistent with
 the regulations themselves.  Rather, it appears that the Agency opposes
 incorporation of the regulatory requirements in the agreement.  Indeed,
 comparison of this portion of the proposal, especially the part enclosed
 by quotation marks, with the cited Office of Personnel Management (OPM)
 regulations, as printed in the latest edition of the CFR (1984 Supp.),
 reveals that, while the part of the proposal in quotes is not quite an
 exact reiteration of the regulations, the minor variations in the
 proposal do not render it inconsistent with the regulations.  /7/ In
 these circumstances, the Agency has raised no viable objection to the
 first paragraph.  Additionally, it is noted that the subject matter of
 the first paragraph is not expressly excluded by section 7121 of the
 Statute from coverage of a negotiated grievance procedure and is
 therefore a matter appropriate for collective bargaining.  See, e.g.,
 National Treasury Employees Union and Internal Revenue Service, 3 FLRA
 693 (1980) (Union Proposals II and III);  and Association of Civilian
 Technicians, New York State Council and State of New York, Division of
 Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Union
 Proposal 1).  /8/
 
    The second paragraph of Union Proposal 4 would, in effect, require
 employees in the listed occupations to remain in the same competitive
 level for the life of the parties' agreement.  The proposed requirement
 reflects the Union's belief that "the two types of positions belong in
 the same competitive level." /9/ In this regard, the Authority notes
 that a position's competitive level is determined by, inter alia,
 duties, responsibilities and working conditions and that to be in the
 same competitive level, positions must be "sufficiently alike" so that
 "an agency readily may assign the incumbent of any one position to any
 of the other positions without changing the terms of his appointment or
 unduly interrupting the work program." See n.7.  Thus, the proposal's
 second paragraph, read in conjunction with the OPM regulations defining
 "competitive levels" imposes a limitation on the Agency's authority,
 pursuant to section 7106(a)(2)(B) of the Statute, to assign work.  That
 is, the Agency would either be constrained to maintain duties,
 responsibilities and working conditions for these occupations as they
 existed under the old organization or to effect only such changes in
 these factors as would allow assignment, in conformity with the
 regulations, of the two occupations to the same competitive level.  In
 limiting management's discretion in making work assignments to employees
 in the listed occupations, the second paragraph of Union Proposal 4 is
 to the same effect as the proposal before the Authority in International
 Association of Fire Fighters, Local F-109, AFL-CIO and Department of the
 Army, Headquarters, Carlisle Barracks, Pennsylvania, 8 FLRA 35 (1982)
 which required, inter alia, that work assignments be consistent with the
 position classification standards of the particular occupation.
 Consequently, based on Carlisle Barracks, and the reasons and cases
 cited therein, the second paragraph of Union Proposal 4 is likewise
 inconsistent with management's right, pursuant to section 7106(a)(2)(B),
 to assign work and is, therefore, outside the duty to bargain.
 
                             Union Proposal 5
 
          TRAINING.  The Union and Management will establish a joint
       training committee to facilitate training for the implementation
       of the transition to "modern systems."
 
    The Agency contends that it is not obligated to bargain on Union
 Proposal 5 because, based upon provisions in the parties' current
 negotiated agreement, "the Union has made a clear and unequivocal waiver
 to negotiate further on the subject of training during mid-term as
 proposed." /10/ The Agency also asserts that the proposal concerns the
 technology, methods and means of performing work and, therefore,
 pursuant to section 7106(b)(1), is negotiable only at the Agency's
 election.
 
    As to the Agency's first contention, in accordance with the
 Authority's decision in American Federation of Government Employees,
 AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th
 Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA
 302 (1984), the Agency's position concerning waiver does not provide a
 basis for dismissing the petition as it relates to Union Proposal 5.
 
    Contrary to the Agency's second contention, the Authority finds that
 the proposal does not directly concern the technology, methods and means
 of performing work.  In this regard, there is nothing in either the
 parties' agreement, or the language of the proposal itself, which would
 require the conclusion that the committee proposed to be established
 would function in anything other than a consultative capacity to suggest
 methods for meeting training needs.  Indeed, the provisions of the
 parties' present agreement, included in the record and cited by both
 parties with respect to the waiver issue, lends further support to this
 conclusion.  Consequently, for the reasons set forth concerning Union
 Proposal 3, above, and again based upon U.S. Army Adjutant General
 Publication Center, 14 FLRA 438 (1984), Union Proposal 5, which only
 concerns a procedure by which the Agency will exercise its management
 rights, is within the duty to bargain.  /11/
 
                             Union Proposal 6
 
          d.  Private offices will be on the inside core near the main
       entrance.  Employee work areas will be on the outside of the room
       where there is better light and less internal office traffic.
 
          f.  A second entrance at N1321 will be established so employees
       may enter and leave without creating traffic through the whole
       work area and have access to the nearest drinking fountain and
       provide a second employee escape from the hallway.
 
          g.  Window areas will not be blocked by private offices and
       high partitions.
 
          h.  Doors will not be alarmed.  As in GAO 2832, they will be
       set so they cannot be opened from the hallway.
 
    The Agency asserts that it is under no obligation to bargain over
 Union Proposal 6 sections d and g because the offices which are the
 subject of these portions of the proposal are occupied by nonbargaining
 unit personnel.  In response, the Union contends, with regard to section
 6d that the second sentence of the paragraph "refers only to the space
 to be used by bargaining unit employees." /12/ The Union does
 acknowledge, however, that at least some of the private offices referred
 to in Proposal 6 are occupied by nonbargaining unit employees.  Thus,
 section 6d, by fixing the location within the building of space to be
 occupied by unit employees, inevitably has an impact on the location of
 nonunit personnel.  That is, locating unit space on the outside of the
 room would require that private offices, occupied by employees outside
 the bargaining unit, be sited elsewhere.  It is well established that
 the duty to bargain does not extend to matters concerning positions and
 employees outside the bargaining unit.  See, e.g., International
 Federation of Professional and Technical Engineers, AFL-CIO, NASA
 Headquarters Professional Association and National Aeronautics and Space
 Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982).
 Insofar as section 6g, which also affects the location of private
 offices by prohibiting them from being located next to windows, would
 also directly determine conditions of employment of nonunit employees,
 it concerns matters beyond the representation rights of the Union and
 likewise is not within the Agency's obligation to bargain.
 
    The Agency alleges that sections f and h of Union Proposal 6 are
 nonnegotiable because they interfere with its reserved right, pursuant
 to section 7106(a)(1) of the Statute, to determine its internal security
 practices.  Alarming of doors and limiting access to the work area
 clearly are measures directly related to the internal security of the
 Agency.  In this regard, the Authority observed, in National Association
 of Government Employees, SEIU, AFL-CIO and Department of the Air Force,
 Scott Air Force Base, Illinois, 16 FLRA No. 57 (1984), that " . . . an
 agency's right to determine its internal security practices includes the
 right to determine policies and actions which are part of its plan to
 secure or safeguard its physical property against internal or external
 risks." Since sections f and h on their face concern what methods
 management must, or must not utilize with regard to limiting access into
 or out of its work area, they are inconsistent with the authority,
 pursuant to section 7106(a)(1), to determine internal security practices
 and are outside the duty to bargain.  /13/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review, as it relates
 to Union Proposals 1, 2, the second paragraph of Union Proposal 4 and
 Union Proposal 6 be, and it hereby is, dismissed.  IT IS FURTHER ORDERED
 that the Agency shall upon request (or as otherwise agreed to by the
 parties) bargain concerning Union Proposal 3, the first paragraph of
 Union Proposal 4 and Union Proposal 5.  Issued, Washington, D.C., April
 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its Reply Brief, the Union withdrew several additional
 proposals and portions of others.
 
 
    /2/ As originally submitted to the Authority, Union Proposal 2
 referred to "performance appraisal based on their PD." However, the
 Agency, in its Statement of Position, construed this phrase as referring
 to "performance standards," and this construction was ;  subsequently
 affirmed by the Union.
 
 
    /3/ As noted previously, the Authority will not base a negotiability
 determination on an explanation clearly at odds with the express
 language of a proposal.  Office of the Adjutant General, Des Moines,
 Iowa, 5 FLRA 617 (1981).
 
 
    /4/ Union Reply Brief at 5.
 
 
    /5/ In finding Union Proposal 3 within the duty to bargain, the
 Authority makes no judgment as to its merits.  Moreover, to the extent
 that there are factual issues in dispute between the parties concerning
 the duty to bargain on this proposal, in the circumstances of this case,
 these issues may be raised in other appropriate proceedings.  American
 Federation of Government Employees, AFL-CIO, Local 2736 and Department
 of the Air Force, Headquarters, 379th Combat Support Group (SAC),
 Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).
 
 
    /6/ Agency Statement of Position at 6.
 
 
    /7/ The pertinent part of 5 CFR 351.403 provides:
 
          (a) Each agency shall establish competitive levels consisting
       of all positions in a competitive area in the same grade or
       occupational level which are sufficiently alike in qualification
       requirements, duties, responsibilities, pay schedules, and working
       conditions, so that an agency readily may assign the incumbent of
       any one position to any of the other positions without changing
       the terms of his appointment or unduly interrupting the work
       program.
 
 
    /8/ In finding the first paragraph of Union Proposal 4 within the
 duty to bargain, the Authority makes no judgment as to its merits.
 
 
    /9/ Union Reply Brief at 7.
 
 
    /10/ Agency Statement of Position at 7.
 
 
    /11/ In finding Union Proposal 5 to be within the duty to bargain,
 the Authority makes no judgment as to its merits.  Again, as noted in
 n.5, supra, any subsisting factual issues concerning the obligation to
 bargain should be reso