21:1124(129)NG - AFGE, Local 12 and DOL -- 1986 FLRAdec NG



[ v21 p1124 ]
21:1124(129)NG
The decision of the Authority follows:


 21 FLRA No. 129
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 12
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-938
 
               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 presents issues
 concerning the negotiability of twenty-four Union proposals.  These
 proposals are set forth in an Appendix to this decision.
 
                              II.  Background
 
    The Union submitted the proposals at issue to the Agency in response
 to the Agency's announcement of its intention to implement a space
 reduction plan in compliance with a General Services Administration
 (GSA) space reduction regulation.  This regulation is GSA Federal
 Property Management Regulation (FPMR), Temporary Regulation D-68, which
 was originally effective from March 9, 1983, until January 31, 1984, and
 was extended until May 25, 1985.  However, it has been superseded by
 FPMR Temporary Regulation D-71, effective July 1, 1985, to June 30,
 1987.  41 C.F.R. Section 101-17 (1985) at 333.
 
                      III.  Positions of the Parties
 
    The Agency does not argue that any of the twenty-four disputed
 proposals is inconsistent with applicable law, rule or regulation and,
 hence, is nonnegotiable.  Rather, the Agency's sole contention in this
 case is that it has no duty to bargain on the proposals under the
 circumstances because its implementation of the GSA space reduction
 regulation will have no material effect or substantial impact on
 conditions of employment of bargaining unit employees.  The Agency
 argues that in these circumstances a requirement to bargain on the
 Union's proposals would be inconsistent with the mandate of section
 7101(b) that the Statute "be interpreted in a manner consistent with the
 requirement of an effective and efficient Government." In support, the
 Agency relies on the Seventh Circuit's decision in Internal Revenue
 Service v. Federal Labor Relations Authority, 717 F.2d 1174 (7th Cir.
 1983), denying enforcement of Internal Revenue Service, Chicago,
 Illinois, 9 FLRA 648 (1982).
 
    According to the Union, the disputed proposals are clear as written.
 The Union did not file a Reply Brief.
 
                       IV.  Analysis and Conclusion
 
                            A.  Duty to Bargain
 
    The Agency's reliance on Internal Revenue Service, 717 F.2d 1174 (7th
 Cir. 1983), is misplaced as that decision concerned whether an agency's
 failure to bargain in the circumstances of that case constituted an
 unfair labor practice and not whether particular matters sought to be
 bargained are consistent with applicable law, rule and regulations.
 When a union files a negotiability appeal under section 7105(a)(2)(E) of
 the Statute, section 7117(c) entitles it to a decision on the
 negotiability issues in the appeal.  To the extent that there are
 factual issues in dispute between the parties concerning the duty to
 bargain in the specific circumstances of the case, such issues should 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).  Hence, the Agency's
 contention that, under the circumstances, it has no duty to bargain on
 the disputed proposals, is not relevant in the context of a
 negotiability dispute.
 
                     B.  Proposals 1-16, 18, 19, 21-24
 
    It is well established that the parties bear the burden of creating a
 record upon which the Authority can make a negotiability determination.
 See National Federation of Federal Employees, Local 1167 v. Federal
 Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g
 National Federation of Federal Employees, Local 1167 and Department of
 the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead
 Air Force Base, Florida, 6 FLRA 574 (1981).  A party failing to assume
 the burden acts at its peril.  Proposals 1-16, 18, 19 and 21-24
 generally concern reductions in space, space allocation, the arrangement
 of space, the furniture and equipment to be utilized by employees and
 information related to those matters requested by the Union for use in
 negotiations.  The Authority has held that such matters principally
 relate to the working conditions of employees and are within the duty to
 bargain unless an agency demonstrates that the proposals are
 inconsistent with applicable law or regulation.  See, for example,
 American Federation of State, County and Municipal Employees, AFL-CIO,
 Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 583
 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations
 Authority, 699 F.2d 1280 (D.C. Cir. 1983) in which various proposals
 concerning bookshelf and file cabinet space, office partitions, office
 doors, shower and locker facilities were found to be within the duty to
 bargain because the agency did not establish that the selection of
 furniture, equipment or office design had, as claimed, a technological
 relationship to accomplishing or furthering the performance of the
 agency's work with which the particular proposals interfered.  Compare
 American Federation of State, County and Municipal Employees, AFL-CIO,
 Local 2910 and Library of Congress, 19 FLRA No. 130 (1985), in which
 proposals concerning employee seat assignments were found to concern the
 methods and means of performing work within the meaning of 7106(b)(1)
 and outside the duty to bargain because the agency made the proper
 showings.
 
    The Agency in this case has made no claim whatever, and it is not
 otherwise apparent, that the disputed proposals are inconsistent with
 law, Government-wide rule or regulation or with an agency regulation for
 which a compelling need exists.  Hence, the Authority is constrained to
 find Proposals 1-16, 18, 19 and 21-24 to be within the duty to bargain.
 
                       C.  Union Proposals 17 and 20
 
    Union Proposal 17 provides that the "adverse impact of space change
 on performance" will be reflected by certain specific adjustments in
 performance standards.  Proposal 20 provides that productivity levels
 will be established prior to the space changes and that they will be
 measured and reduced at intervals after the changes.  These proposals
 are to the same effect as Union Proposal 2 found nonnegotiable in
 National Federation of Federal Employees, Council of Consolidated SSA
 Locals and Department of Health and Human Services, Social Security
 Administration, 17 FLRA 657 (1985), petition for review filed sub nom.
 Department of Health and Human Services, Social Security Administration
 v. FLRA, No. 85-1601 (4th Cir. June 19, 1985).  In that case, the
 proposal provided that time limits for certain tasks would "be adjusted
 to take into consideration the additional research and development time
 needed." The Authority held that as the proposal directly addressed the
 content of performance standards by requiring that time limits be
 adjusted, management's authority to establish these performance
 standards was substantively restricted.  Thus, the Authority concluded
 in Department of Health and Human Services that the proposal interfered
 with the agency's right to assign work and direct employees pursuant to
 section 7106(a)(2)(A) and (B) of the Statute.  Hence, for the reasons
 and cases cited in Department of Health and Human Services, Union
 Proposals 17 and 20 interfere with the rights to assign work and direct
 employees under section 7106(a)(2)(A) and (B) of the Statute and are
 outside the duty to bargain.
 
                                 V.  Order
 
    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 17 and 20 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 1-16, 18,
 19 and 21-24.  /*/
 
    Issued, Washington, D.C., May 30, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In finding these proposals within the duty to bargain, the
 Authority makes no judgment as to their merits.
 
 
 
 
 
 
                               APPENDIX
 
  LOCAL 12 PROPOSALS TO ADDRESS THE ADVERSE IMPACT OF THE LMSA
 SPACE
 REDUCTION PROGRAM
 
          1.  Space changes in LMSA will not be implemented until full
       and final consultation and negotiations have occurred between the
       Department and the union.
 
          2.  Management will provide all information requested before
       completing negotiations with the union.
 
          3.  LMSA will limit its space reduction in fiscal 1984 to a 10%
       reduction by September 1984, as provided in GSA Regulation D-68.
 
          4.  In reducing space, the current individual space tables will
       be followed by LMSA (see below).  Where there must be a reduction
       in individual allocations the space provided for higher grades
       (supervisors-managers-executives) will be reduced to meet the
       goals along with their adjoining reception areas and foyers.  In
       no case will individual space below 150 square feet be reduced.
       TABLE OMITTED
 
          5.  To further the stated LMSA goal "THAT SPACE OCCUPIED BY
       LMSA EMPLOYEES SHALL BE ARRANGED AND MAINTAINED SO AS TO
 ASSURE A
       QUALITY WORKING ENVIRONMENT" the following measures are proposed:
 
          a) windows will not be blocked by private offices.
 
          b) the "executive core" approach will be followed with private
       offices located on the inner core.
 
          c) window space will be occupied by non-supervisors.
 
          d) space not by a window will be 10% greater to provide for an
       "equalization of desirability."
 
          e) meeting areas will not be included inside private offices
       and all meeting areas will be useable by all employees on a
       reservation basis.
 
          f) in every office a number of common areas will be provided
       for small meetings with clients, contractors, task forces,
       colleagues, or for collating.
 
          g) space for clericals or anyone whose space is not defined by
       walls or partitions will be shown on the plans by dotted lines