17:0899(118)NG - AFGE Local 2761 and Army Adjutant General, Publication Center, St. Louis, MO -- 1985 FLRAdec NG



[ v17 p899 ]
17:0899(118)NG
The decision of the Authority follows:


 17 FLRA No. 118
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 2761 
 Union 
 
 and
 
 U.S. ARMY ADJUTANT GENERAL 
 PUBLICATION CENTER, ST. LOUIS, 
 MISSOURI
 Agency
 
                                       Case No. 0-NG-419
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The 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 nine Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Section 2.  Management Commitment
 
          The employer will allocate all necessary resources to
       effectively administer the EEO Program and there will be criteria
       for staffing that will also assure effective performance in all
       program aspects, including affirmative action and processing of
       discrimination complaints.  Managers and supervisors on all levels
       will fully support and participate in, as appropriate, all
       policies and programs and are responsible for meeting any goals
       and objectives established for full equal employment within their
       areas of jurisdiction.
 
                             Union Proposal 3
 
          Section 5.  EEO Counselors
 
          The employer agrees to provide at each activity an adequate
       staff of trained EEO counselors, who will be available and
       accessible to all employees, wherever their work stations.
 
    In American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603,
 615-19 (1980), enforced as to other matters sub nom. Department of
 Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443
 (1982), the agency contended that certain proposals in dispute
 concerning management's establishment of comprehensive plans and
 programs to implement the agency's equal employment opportunity (EEO)
 policies and objectives did not concern "conditions of employment"
 within the meaning of section 7103(a)(14) of the Statute.  In that
 decision, the Authority held, contrary to the agency's contentions, that
 the proposals concerned conditions of employment and thus were within
 the duty to bargain.
 
    In this case, the Agency asserts that, as distinguished from the
 Wright-Patterson decision, Proposal 1 does not concern "conditions of
 employment" within the meaning of section 7103(a)(14).  The Authority
 determines, contrary to the Agency's argument, that the proposal is
 similar to the proposals in Wright-Patterson and does concern conditions
 of employment for the reason stated in that decision.  In this regard,
 the proposal would not require any particular actions by the Agency in
 furtherance of the proposed objective, i.e., supervisory and management
 participation, so as to be outside the duty to bargain.  Cf. American
 Federation of Government Employees, Afl-cio, Local 909 and Department of
 the Army, Headquarters, Military Traffic Management Command, Washington,
 D.C., 6 FLRA 502 (1981) (proposal concerning assessment of supervisors'
 performance and training does not concern "conditions of employment"
 pursuant to section 7103(a)(14)).
 
    The Agency expressly concedes that it is obligated under
 Government-wide regulation to provide sufficient resources to administer
 its EEO program.  However, the Agency disputes the negotiability of
 Proposals 1 and 3 insofar as they would establish a contractual
 obligation "independent of the regulatory requirement and which would
 continue even if the regulation were rescinded." /2/ As to this
 argument, the Authority concludes, contrary to the Agency, that the
 proposals herein would not establish an independent contractual
 obligation but instead would simply implement the Agency's EEO program
 consistent with law.  /3/ In this regard, the proposals would provide
 generalized support for the EEO program.  For example, Proposal 1 would
 provide for the allocation of "necessary resources to effectively
 administer the EEO program." The Union explains the proposal as follows:
 
          (T)he proposal merely requires a commitment to EEO, and in no
       manner does the proposal address itself to determining the way in
       which the agency will perform the particular activities by which
       it accomplishes its mission.  (Footnote omitted.)
 
 Proposal 3 would simply provide for "adequate" staffing, and, in our
 view, would similarly not require the Agency to allocate its resources
 in any particular way beyond that which is authorized by law.
 
    As to the Agency's claims that the proposals violate management
 rights, the record does not establish that the proposals would prescribe
 the assignment of particular duties to certain employees or the
 establishment of new positions to perform EEO program-related duties.
 Consequently, the Agency has not shown that the proposals are
 inconsistent with management's rights to hire or assign employees
 pursuant to section 7106(a)(2)(A) or its right to determine the number
 of employees assigned pursuant to section 7106(b)(1) of the Statute.
 /4/ Rather, the proposals would provide for a general commitment to the
 Agency's EEO program in a manner which is substantially similar to the
 proposals held negotiable in Wright-Patterson.  Accordingly, it is
 determined that the proposals are not outside the duty to bargain.
 
                             Union Proposal 2
 
          Section 3.  Personnel Actions and Employment Practices
 
          All personnel actions and employment practices involving
       employees and applicants for employment will be based solely on
       law and the terms of this contract.
 
    The duty to bargain established in the Statute extends to matters
 relating to "conditions of employment," i.e., personnel policies,
 practices and matters affecting working conditions of unit employees.
 /5/ Under section 7103(a)(2) the term "employee" relevantly includes
 only individuals currently employed in an agency.  It does not include
 individuals who are applicants for employment with an agency.
 Accordingly, insofar as the proposal would impose certain requirements
 on the Agency as to applicants for employment, the proposal, as alleged
 by the Agency, is not within the Agency's duty to bargain because it is
 not concerned with conditions of employment of unit employees within the
 meaning of section 7103(a)(14) of the Statute.  Cf. American Federation
 of Government Employees, AFL-CIO, Local 2024 and Department of the Navy,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA 125 (1983)
 (proposal benefiting former employees only if and when they are
 reemployed in bargaining unit positions concerns matters which are
 conditions of employment).
 
    Insofar as it is applicable to employees, the proposal would provide
 that all personnel actions and employment practices of the Agency "will
 be based solely on law and the terms of (the parties') contract".  In
 this connection, section 7117 of the Statute provides that the duty to
 bargain does not extend to proposals which are inconsistent with law or
 any Government-wide rules or regulations.  /6/ The agency argues, in
 effect, that the proposal's requirement that its actions be based solely
 on law and contract is in conflict with this statutory provision.  The
 Union states that this is not its intent.  However, it is the Agency's
 interpretation of the proposal that is consistent with its express
 language.  The proposal purports to enumerate the sole legal bases for
 judging the propriety of agency personnel actions and employment
 practices, and thereby excludes Government-wide rules and regulations.
 Accordingly, the Agency's contention that the proposal is not within the
 duty to bargain in this connection must be sustained.  /7/ If the Union
 were to revise its proposal consistent with its stated intent, the
 proposal would be within the duty to bargain.  See, e.g., American
 Federation of Government Employees, AFL-CIO, Local 1533 and Naval Supply
 Center, Oakland, California, 8 FLRA 33, 34 n. 2 (1982).  See also
 American Federation of Government Employees, Council of Social Security
 District Office Locals and Department of Health and Human Services,
 Social Security Administration, 11 FLRA 608, 612-14 (1983) (Member
 Frazier, concurring).
 
                             Union Proposal 4
 
          Section 6.  Affirmative Action
 
                                .  .  .  .
 
          Utilization of Workforce Skills.  The Employer will fully
       utilize the skills and potential of employees, especially those of
       lower-graded employees.
 
                                .  .  .  .
 
          In connection with efforts to correct underutilization and
       underrepresentation of minorities and women the employer will at
       least:
 
          a.  Identify and provide work opportunities commensurate with
       employee skills and potential, especially at the lower levels(.)
 
    Union Proposal 4 expressly would require management to provide
 employees with opportunities to perform work commensurate with their
 skills and abilities.  The proposal is identical to Proposal 3 in
 American Federation of Government Employees, AFL-CIO, Local 2263 and
 Department of the Air Force Headquarters, 1606th Air Base Wing (MAC),
 Kirtland Air Force Base, New Mexico, 15 FLRA No. 126 (1984).  In that
 case, the Authority, relying on its decision as to "the last sentence of
 Article 10 section 9" in National Treasury Employees Union and
 Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982),
 remanded as to other matters, D.C. Cir. No. 82-2225 (Jan. 19, 1984),
 vacated by FLRA as to other matters, May 3, 1984, concluded that the
 proposal directly interfered with the agency's right, pursuant to
 section 7106(a)(2)(B) of the Statute, to assign work.  Consequently,
 based on U.S. Customs Service, and the reasons and cases cited therein,
 Union Proposal 4 herein is outside the duty to bargain.
 
                             Union Proposal 5
 
          Section 6.  Affirmative Action
 
                                .  .  .  .
 
          Utilization of Workforce Skills.
 
                                .  .  .  .
 
          In connection with efforts to correct underutilization and
       underrepresentation of minorities and women the employer will at
       least:
 
                                .  .  .  .
 
          c.  Designate a specific number of positions to be utilized to
       provide opportunities for employees to enhance their skills,
       perform at their highest potential, and advance in accordance with
       their abilities through results-oriented training programs.
 
    Based on the Union's statement of its intent and the language of the
 proposal, the proposal would require the Agency to fill an undetermined,
 specific number of positions as upward mobility or training positions.
 In this regard, the proposal is substantially identical to the second
 sentence of the disputed proposal in National Treasury Employees Union
 and Internal Revenue Service, 2 FLRA 281 (1979), which would have
 required the agency to fill certain percentages of available vacancies
 at upward mobility positions.  The Authority held that portion of the
 proposal directly interfered with management's right to assign employees
 under section 7106(a)(2)(A) of the Statute.  For the reasons stated in
 that case, Proposal 5 herein is similarly outside the duty to bargain.
 See also American Federation of Government Employees, AFL-CIO, Council
 of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA
 286 (Provision 1) (1983).  /8/
 
                            Union Proposals 6-7
 
          Section 6.  Affirmative Action
 
                                .  .  .  .
 
          Utilization of Workforce Skills.
 
                                .  .  .  .
 
          In connection with efforts to correct underutilization and
       underrepresentation of minorities and women the employer will at
       least:
 
                                .  .  .  .
 
                               (Proposal 6)
 
          h.  Permit individuals with physical or mental handicaps,
       chronic ailments, illnesses or injuries, and single heads of
       families who have dependents, to utilize sick or annual, or LWOP,
       to handle responsibilities for themselves and/or dependents.
       Supervisors will grant leave in all cases where the need is
       clearly documented on the request for leave, without undue
       pressure to the employee.  (Only the underscored portion is in
       dispute.)
 
                               (Proposal 7)
 
          i.  Accommodations, including granting administrative leave,
       will be made to the religious needs of employees, including those
       who observe the Sabbath on a day other than Sunday, when such
       changes can be made without undue adverse impact on the other
       employees.
 
    Union Proposal 6 would require management to grant an employee's
 request for leave without regard to the necessity for that employee's
 service during the period covered by the request.  In that regard, it is
 identical to the disputed portion of Proposal 4 in AFGE, Local 2263 and
 Kirtland Air Force Base, 15 FLRA No. 126 (1984).  The Authority found
 that proposal, insofar as it involved the granting of annual leave,
 violated management's right to assign work pursuant to section
 7106(a)(2)(B) of the Statute and, insofar as it involved the granting of
 sick leave, was inconsistent with 5 CFR 630.401, a Government-wide
 regulation.  For the reasons more fully stated in that case, the
 Authority finds Proposal 6 herein to be outside the duty to bargain.
 
    Union Proposal 7 would base the standard for granting administrative
 leave or other "accommodations" to the religious needs of unit employees
 upon the absence of undue adverse impact on other unit employees.  It is
 identical to Union Proposal 5 in AFGE, Local 2263 and Kirtland Air Force
 Base, 15 FLRA No. 126 (1984).  For the reasons stated with respect to
 that proposal therein, Union Proposal 7 violates management's right to
 assign work and also violates other law, i.e., 42 U.S.C. 2000e(j), and
 is, therefore, outside the duty to bargain.
 
                             Union Proposal 8
 
          Section 6.  Affirmative Action
 
                                .  .  .  .
 
          The Employer will brief personnel and emphasize their
       responsibility for implementing established EEO goals and
       objectives through special staff conferences and
       supervisory/managerial development programs.
 
    From the express language of the proposal and the Agency's
 understanding of its intent, which is not disputed by the Union, the
 proposal is chiefly concerned with the Agency's objectives in training
 and developing its supervisory and management personnel and the actions
 it will take to achieve such objectives.  Accordingly, as it is
 concerned with such matters rather than either the representational
 rights of the exclusive representative or matters which directly relate
 to the conditions of employment of unit employees, it is not within the
 duty to bargain pursuant to section 7103(a)(14) of the Statute.
 American Federation of Government Employees, National Council of EEOC
 Locals No. 216, AFL-CIO and Equal Employment Opportunity Commission,
 Washington, D.C., 3 FLRA 504 (1980).
 
                             Union Proposal 9
 
          Section 6.  Affirmative Action
 
                                .  .  .  .
 
          The Employer will assure that all employees, recognized
       employee organizations, and applicants understand the EEO program.
        (Only underscored portion in dispute.)
 
    The proposal is in dispute insofar as it provides that the Agency
 will assure that all applicants understand the EEO Program.  As
 explained more fully in connection with Proposal 2, above, the duty to
 bargain pursuant to section 7103(a)(14) of the Statute, in conjunction
 with the definition of "employee" provided for in section 7103(a)(2) of
 the Statute, only extends to conditions of employment of unit employees.
  It does not extend to matters affecting applicants for employment.
 Accordingly, as the proposal is concerned with the Agency's actions as
 to applicants for employment, it is not within the Agency's duty to
 bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Union
 Proposals 2, 4, 5, 6, 7, 8 and 9 be, and it hereby is, dismissed.  /9/
 IT IS FURTHER ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposals 1
 and 3.  Issued, Washington, D.C., May 8, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its response to the Agency's statement of position in this
 case, the Union has requested that six additional proposals which it
 presented for decision in its initial petition for review be withdrawn
 from consideration.  The Union's request is granted and those proposals
 will not be considered further herein.
 
 
    /2/ Agency Statement of Position at 2.
 
 
    /3/ In this regard, Exec. Order No. 11,478, 29 CFR 1613.201 (1984)
 provides as follows:
 
          EQUAL EMPLOYMENT OPPORTUNITY IN THE FEDERAL GOVERNMENT
 
                                .  .  .  .
 
    Sec. 2.  . . . It is the responsibility of each department and agency
 head, to the maximum extent possible, to provide sufficient resources to
 administer such a program in a positive and effective manner(.)
 
 
    /4/ Cf. American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 603, 622-23 (1980), enforced as to other matters sub nom. Department of
 Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir.
 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443
 (1982) (proposal requiring the assignment of EEO duties to particular
 employees would violate management's right under section 7106(a)(2)(B)
 to assign work to positions or employees).
 
 
    /5/ See sections 7103(a)(12), 7103(a)(14) and 7114 of the Statute.
 
 
    /6/ That section provides, in pertinent part:
 
          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.
 
 
    /7/ In this regard, 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., National Federation of Federal Employees, Local 29
 and Department of the Army, U.S. Army Corps of Engineers, Kansas City
 District, Kansas City, Missouri, 16 FLRA No. 18 (1984) at 2 n. 3 of
 decision.
 
 
    /8/ As to the Union's argument that the proposal incorporates the
 mandates of regulatory authorities, the proposal is outside the duty to
 bargain as substantively interfering with the exercise of management's
 rights under the Statute, notwithstanding the fact that the Agency may
 be required to implement such actions by outside rule or regulation.
 National Federation of Federal Employees, Local 1167 and Department of
 the