21:0658(84)NG - AFGE,Local 644 and Dept. of Labor, OSHA -- 1986 FLRAdec NG



[ v21 p658 ]
21:0658(84)NG
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 Re