21:1046(122)NG - AFGE, Local 644 and DOL, Mine Safety and Health Administration -- 1986 FLRAdec NG



[ v21 p1046 ]
21:1046(122)NG
The decision of the Authority follows:


 21 FLRA No. 122
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 644
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR 
 MINE SAFETY AND HEALTH ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-977
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    The petition for review in this 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) and
 raises issues concerning the negotiability of three Union proposals made
 in connection with an office relocation.
 
                           II.  Threshold Issue
 
    The Agency contends that it has no duty to bargain any of the three
 proposals because the office relocation does not substantially or
 materially affect any condition of employment.  It also claims as to
 Union Proposal 2 that it has no duty to bargain based on bargaining
 history and the coverage of the parties' existing agreement.
 
    The Authority has consistently held that we 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).
 
                          III.  Union Proposal 1
 
          Management shall provide sufficient telephones necessary to
       conduct government business.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal is bargainable only at the
 election of the Agency under section 7106(b)(1) because it concerns the
 technology, methods, and means of performing work i.e., the Agency will
 determine the number of telephone instruments necessary for the conduct
 of its business.  The Agency also maintains that there is no obligation
 to bargain on the proposal because it is inconsistent with the
 requirement under section 7101(b) of the Statute that the Statute be
 interpreted in a manner consistent with an effective and efficient
 Government.
 
    The Union contends that the proposal is negotiable because the
 employees in the effected office are Mine Safety and Health Inspectors
 who have a critical need for the use of a telephone to perform their
 official duties and because the Agency signed a Memorandum of
 Understanding with the Union in which the Agency did in fact bargain
 over telephones and thus established a past practice of bargaining over
 the matter.
 
                        B.  Analysis and Conclusion
 
    Union Proposal 1, by requiring that sufficient telephones "for the
 conduct of Government business" be furnished, concerns the "technology
 of performing work" within the meaning of section 7106(b)(1) of the
 Statute.  American Federation of Government Employees, Local 644,
 AFL-CIO and U.S. Department of Labor, Mine Health and Safety
 Administration, Morgantown, West Virginia, 15 FLRA No. 170 (1984) (Union
 Proposal 3), citing American Federation of Government Employees,
 AFL-CIO, Local 3760 and Social Security Administration, Disability
 Analysis Branch, Field Assessment Office, 11 FLRA 576 (1983) and cases
 cited therein.  Under section 7106(b)(1), such matters are negotiable at
 the Agency's election.  Also, it is well established that an agency may
 withdraw from bargaining on a matter within the coverage of section
 7106(b)(1) of the Statute at any time prior to reaching final agreement
 on such matter.  See National Federation of Federal Employees, Local
 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16
 FLRA No. 60 (1984) (Provisions 2-3);  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), rev'd on other grounds
 sub nom. United States Department of Justice, Immigration and
 Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983).  Since
 the Agency has declined to bargain on the proposal, we conclude that
 Union Proposal 1 is not within the duty to bargain.  We therefore need
 not address the Agency's additional claim that bargaining over the
 proposal would be inconsistent with section 7101(b).
 
                           IV.  Union Proposal 2
 
          Adequate parking shall be provided for both government and
       private automobiles.
 
                       A.  Positions of the Parties
 
    The Agency argues that the proposal conflicts with government-wide
 regulations pertaining to parking and is inconsistent with section
 7106(a) and (b)(1) of the Statute because it relates to the assignment
 of work.
 
    The Union contends that the proposal is negotiable because it deals
 only with maintaining the adequacy of parking for bargaining unit
 employees.
 
                        B.  Analysis and Conclusion
 
    The Government-wide regulations relied upon by the Agency are the
 same as those involved in American Federation of Government Employees,
 Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and
 Health Administration, 21 FLRA No. 84 (1986) (Union Proposals 6 and 11).
  In that case we found that the regulations were not a bar to
 negotiation of a proposal to provide parking for private and government
 vehicles.  For the reasons stated in that decision, we reach the same
 result in the present case.  As to whether the proposal is inconsistent
 with management rights under section 7106, however, an issue which was
 not presented in U.S. Department of Labor, OSHA, we find that Union
 Proposal 2 by requiring the Agency to negotiate over the adequacy of
 parking i.e., number of spaces, for government vehicles concerns the
 method, means and technology of performing work within the meaning of
 section 7106(b)(1) of the Statute.  The proposal would require the
 Agency to acquire parking spaces for government vehicles used in
 connection with an employee's performance of official duties.  Matters
 relating to the use of government vehicles, including parking for them,
 constitute methods, means and technology of performing the agency's
 work.  Compare, American Federation of Government Employees, AFL-CIO,
 Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety
 Administration, Morgantown, West Virginia, 15 FLRA No. 170 (1984) (Union
 Proposal 3) (matters pertaining to use of telephone for government
 business within purview of 7106(b)(1) of the Statute).  As such, the
 proposal violates section 7106(b)(1).  Since the Agency has not elected
 to bargain on the matter, the Authority concludes that the proposal is
 not within the duty to bargain.
 
                           V.  Union Proposal 3
 
          Prior to occupancy, a complete Safety and Health inspection
       shall be made of the building and office space provided.  Before
       occupancy, all conditions observed shall be corrected.  The Union
       shall be a part of the inspection team.
 
                       A.  Positions of the Parties
 
    The Agency argues that:  (1) the proposal is inconsistent with the
 requirement under section 7101(b) of the Statute that the Statute be
 interpreted in a manner consistent with an effective and efficient
 Government;  and (2) the Union waived its right under the parties'
 agreement to bargain on the proposal by virtue of the bargaining history
 of the agreement.
 
    The Union contends that:  (1) the parties' agreement does not address
 pre-occupancy inspections of facilities;  and (2) the proposal does
 materially affect conditions of employment pertaining to safety and
 health because it is the Union's obligation to insure that employees
 will be moving into a hazard-free work environment from the hazard-free
 environment they currently enjoy.
 
                        B.  Analysis and Conclusion
 
    The proposal is not sufficiently specific and delimited in content to
 enable a negotiability determination to be made.  From the proposal and
 the parties' statements it is unclear:  (1) whether the committee itself
 will correct deficiencies based upon its findings and/or whether its
 findings are binding upon management;  and (2) the relative weight of
 the Union's participation -- whether it is intended to be an equal,
 minority or majority role.  The Authority has found proposals concerning
 the establishment of local health and safety committees to be within the
 duty to bargain.  See American Federation of Government Employees,
 AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of
 Prisons, 11 FLRA 286 (1983) (Provision 2).  Of course, proposals
 including those concerning joint labor-management committees which
 interject the union into the agency decision-making process through
 which management exercises its reserved rights under the Statute, are
 outside the duty to bargain.  Such proposals, in effect, place the union
 "inside" management's decision-making process, giving the union
 information about and access to the discussions and