21:0658(84)NG - AFGE,Local 644 and Dept. of Labor, OSHA -- 1986 FLRAdec NG
[ v21 p658 ]
The decision of the Authority follows:
21 FLRA No. 84 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 644, AFL-CIO Union and U.S. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Agency Case No. 0-NG-849 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of six union proposals. /1/ The proposals concern the relocation of the employees of the Occupational Safety and Health Administration's (OSHA) Area offices at Erie and Pittsburgh, Pennsylvania. II. Procedural Issue The Union's Petition for Review sets forth proposals both as originally presented at the bargaining table and as subsequently modified in the course of bargaining. Section 2424.4(a)(3) of the Authority's Rules requires the union in its petition to submit the agency's written allegation as to the nonnegotiability of the proposals for which review is being sought. The Union's petition in this case included written declarations of nonnegotiability for the original proposals only. There is no indication in the record that the Union requested a written allegation of nonnegotiability as to the subsequent proposals. Consequently, the Authority will only decide the negotiability of the original proposals. III. Union Proposals 1 and 2 Union Proposal 1 (Erie) The new space will be structures to provide individual offices for each bargaining unit employee. Union Proposal 2 (Pittsburgh) All CSHO's will be provided with offices in accordance with what they have at the present time (9 private offices and 6 offices with 2 CSHO's per office). A. Positions of the Parties The Agency argues that the Union has not shown any impact to which Proposals 1 and 2 relate, and that the Agency's actions, therefore, do not constitute changes in conditions of employment sufficient to create a duty to notify the Union and afford it an opportunity to request bargaining. The Agency also contends that the proposals would require it to negotiate over the technology of performing work in violation of section 7106(b)(1) of the Statute. The Union states that Proposals 1 and 2 were intended to ensure that employees obtain in the new locations the same amount of work space they had in their prior locations. The Union contends that the proposals do not concern the technology of performing work. B. Analysis and Conclusion As to the argument concerning changes in working conditions, the Authority has consistently held that it will only decide in a negotiability appeal issues which are before us under section 7105(a)(2)(D) and (E) of the Statute. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings. See 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). As to the Agency's contention that the proposals are nonnegotiable, the Authority has held that for a proposal concerning office space design to violate an agency's right to determine the technology of performing work, an agency must show (1) that its choice of office space design has a technological relationship to the accomplishment and furtherance of its work and (2) that the proposal would interfere with these purposes. See Department of the Treasury, Internal Revenue Service, Midwest Regional Office, Chicago, Illinois, 16 FLRA 141, 143 (1984) and cases cited there. The Agency contends that the field investigatory personnel covered by the proposals are "expected to be away from the office a preponderant percentage of work time in the conduct of inspection activities required to be performed at the worksites of employers . . ." The Agency argues that open space technology represents a balance between "cost and Governmental efficiency and accomplishment of OSHA's enforcement programs." Agency Statement of Position at 2,3. The Union states, and the Agency does not dispute, that the covered employees are currently housed in private offices even though they currently spend the bulk of their time in the field. Union Petition for Review at 1,3. Since the proposals would not alter the Agency's current practice, and the Agency has not shown how continuing its current practice would interfere with the accomplishment and furtherance of its work, the Authority concludes that the Agency has not demonstrated that open space design has a sufficient technological relationship to accomplishing or furthering the Agency's work to interfere with its determination regarding "technology" in any significant way. Accordingly, the Authority finds that Union Proposals 1 and 2 are within the duty to bargain. Contrast American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA No. 130 (1985) (Union Proposal 1) in which the Authority concluded that a proposal to allow employees their preference of seating assignments was contrary to the agency's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work because the grouping of employees based on their "primary function" was designed to enhance the agency's ability to accomplish its function in a more efficient and effective manner. Union Proposal 5 (Pittsburgh) The library/conference room shall be relocated and that space converted into office space. A. Positions of the Parties The Agency argues that the Union has not shown any adverse impact to which Proposal 5 relates, and that the Agency's actions, therefore, do not constitute changes in conditions of employment sufficient to create a duty to notify the Union and afford it an opportunity to request bargaining. The Agency also contends that the proposal violates its rights under section 7106(b)(1) to determine the technology, methods and means of performing its work and under section 7106(a)(1) to determine its internal security practices. The Union contends that the proposal is intended to lessen the impact on employees of the move itself by making the larger space intended as a library/conference room into office space and placing the library/conference room in a smaller area. B. Analysis and Conclusion As to any factual disputes concerning the existence of an obligation to bargain, see Wurtsmith Air Force Base discussed above with respect to Proposals 1 and 2. As to whether the proposal violates section 7106(b)(1), the Authority finds that the Agency has not provided sufficient support in the record to determine whether the proposal violates the Agency's right to determine the technology, methods and means of performing work. See above discussion concerning Union Proposals 1 and 2. With respect to the argument concerning internal security, the Authority finds that Union Proposal 5 was intended as an arrangement for employees adversely affected by the office move. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4, slip op. at 8-10 (1986) the Authority set forth the factors it will consider in determining whether a proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute or is outside the duty to bargain because it excessively interferes with the exercise of management's rights. One of the factors to be weighed in determining whether a proposed arrangement is appropriate is the nature and extent of the impact on management's ability to act pursuant to its statutory rights. Id. at 9. An agency's right to determine its internal security practices includes the right to determine policies and actions necessary to secure its property against internal or external risks. National Association of Government Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA 361, 362 (1984). The Agency contends that the library's location was chosen so that administrative personnel could monitor its use and the removal of library materials. Agency Statement of Position at 4. The Union agrees that the Agency's concern is "valid." Union Petition for Review at 3. The Authority finds that the location of the library/conference room where it could be monitored by administrative personnel constitutes part of the Agency's plan to safeguard its property and that the Union's proposal would interfere with the Agency's determination. The Authority also finds that the benefit to the employees of having the additional space is not sufficient to overcome the detriment to the Agency's security plan. Consequently, the Authority concludes that Union Proposal 5 excessively interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices and is outside the duty to bargain. V. Union Proposals 6 and 11 Union Proposal 6 (Erie) Free parking spaces will be provided. Union Proposal 11 (Pittsburgh) Free parking will be provided for GOV's and POV's within walking distance of the Federal building. A. Positions of the Parties The Agency contends that employee parking is governed by Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. It argues that General Services Administration (GSA) retains exclusive responsiblity for determining allocations of space for vehicle parking and that the Agency, therefore, is without discretion to provide parking facilities on its own. Additionally, the Agency argues that, because the subject is covered by Government-wide rule or regulation, national consultation rights under section 7113 of the Statute apply rather than collective bargaining. The Union contends that the Agency has discretion to provide employees with free parking as was done at the previous location. B. Analysis The Authority has held that proposals regarding the distribution of parking spaces to employees in the bargaining unit are within the duty to bargain if they are consistent with applicable laws, rules, and regulations. American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 66 (1982) (Union Proposal 2) (citing National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980)). The regulation governing federal employee parking is FPMR Temporary Regulation D-69 (Temp. Reg. D-69), 41 CFR Chapter 101 at Appendix to Subchapter D (superseding 41 CFR 101-20.111) (extending through March 31, 1987, 51 Fed. Reg. 11022 (1986)). The Authority has held that the FPMR applies to the federal civilian work force as a whole and is, therefore, a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747, 755 (1980). Consequently, Temp. Reg. D-69 is a Government-wide regulation which would bar negotiation on a conflicting union proposal. As to whether Union Proposals 6 and 11 conflict with Temp. Reg. D-69, the Agency contends that the Union does not dispute that the facilities which the Agency occupies in Erie and Pittsburgh are within the control of GSA. However, GSA control of the facilities does not leave the Agency without discretion concerning employee parking. First, section 7 of the regulation provides that, while GSA is vested with the authority to allocate parking spaces, GSA may delegate its authority to occupant agencies "by mutual agreement." /2/ Further, section 8 of the regulation provides that parking spaces not required for official needs may be used for employee parking. /3/ Additionally, section 10(f) of Temp. Reg. D-69 recognizes that implementation of the regulation "may require negotiation . . . with recognized labor organizations." The Authority therefore finds that an agency has discretion under Temp. Reg. D-69 to either request that GSA delegate to the agency the authority to allocate parking spaces in accordance with sections 7 and 8, or, if GSA does not agree to the delegation, request GSA to allocate a designated number of spaces for employee parking. See IRS, New Orleans District at 759-60. /4/ This discretion is not unlimited. One limit on an agency's discretion is that GSA is not required to comply with an agency's request. Additionally, contrary to the Union's contention, an agency is without discretion under Temp. Reg. D-69 to secure parking away from the GSA controlled facility without GSA having delegated such authority to the agency. The Agency's argument concerning national consultation rights under section 7113 of the Statute is based upon the proposal's inconsistency with Government-wide regulation. However, in light of our determination that the proposal is not inconsistent with Temp. Reg. D-69, the Authority rejects the Agency's contention. C. Conclusion As discussed above, to the extent that the Agency has discretion to carry out the general requirement of proposals 6 and 11 by requesting GSA to take appropriate action, they are within the duty to bargain. VI. Union Proposal 14 (Pittsburgh) Due to traffic problems and in accordance with Article 25, Section 4, of the negotiated agreement, a pilot flexitime project will be instituted in the Pittsburgh Area Office for all bargaining unit employees. A. Positions of the Parties The Agency contends that Article 25 of the parties' Master Agreement defines the standard work week for employees and is not subject to bargaining under section 7106(b)(2) and (3) of the Statute absent a management-initiated change or a reopener clause. The Agency also argues that it has no obligation to bargain concerning matters over which it has no control. The Union contends that the proposal merely implements Article 25, Section 4 of the parties' Master Agreement. B. Analysis and Conclusion As to any factual issues concerning the existence of an obligation to bargain, see Wurtsmith Air Force Base discussed above with respect to Union Proposals 1 and 2. Union Proposal 14 would establish a pilot flexitime program in the Agency's Pittsburgh office. The Authority has held as a general matter that proposals concerning flexitime are within the duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441 (1981). The Agency's argument that the proposal concerns matters outside its control is unclear and the Agency has provided no basis in the record for the Authority to respond to its contention. Since the Agency has not alleged and it is not otherwide apparent that the proposal is inconsistent with applicable law, regulation, or the Statute, it is within the duty to bargain. VII. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposal 5 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 Proposals 1, 2, 6, 11, and 14. /5/ Issued, Washington, D.C., May 8, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member --------------- FOOTNOTES$ --------------- (1) The Union withdrew one proposal involving the use of shower facilities and did not appeal the Agency's declaration that a proposal regarding the cost of printing employee business cards was nonnegotiable. These proposals will not be considered further here. The Union did not file a Reply Brief in this case. (2) Section 7 of FPMR Temp. Reg. D-69 provides in relevant part: 7. Allocation and assignment of parking for official needs. GSA has responsibility for ensuring the availability of parking spaces for official needs. GSA may, by mutual agreement, delegate allocation and assignment responsibilities to occupant agencies . . . . (3) Section 8 of FPMR Temp. Reg. D-69 provides in relevant part: 8. Allocation and assignment of employee parking spaces. a. Parking spaces not required for official needs may be used for employee parking. b. GSA (or other agencies having assignment responsibilities) will determine the total number of spaces available for employee parking. (4) In IRS, New Orleans District, the Authority held that an agency is without discretion to provide parking for its employees free of charge in that FPMR Temporary Regulation D-65, a Government-wide regulation, required employees to be charged for the use of government-controlled parking. However, that regulation is no longer in effect. Under Temp. Reg. D-69, which currently governs federal employee parking, an agency is no longer required by Government-wide regulation to assess a charge for the use by its employees of government-controlled parking facilities. (5) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.