23:0160(20)NG - AFGE Local 3748 and Agriculture, Agricultural Research Service, Northern State Area -- 1986 FLRAdec NG
[ v23 p160 ]
23:0160(20)NG
The decision of the Authority follows:
23 FLRA No. 20
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3748
Union
and
U.S. DEPARTMENT OF
AGRICULTURE, AGRICULTURAL
RESEARCH SERVICE, NORTHERN
STATES AREA
Agency
Case No. O-NG-1101
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 three Union proposals.
II. Background
Two fo the three Union proposals concern Cooperative Agreements which
are devices used by the Agency to accomplish certain projects.
According to the Agency, a Cooperative Agreement may be one of several
types of agreements providing for mutual undertaking and contribution
between a Federal agency and a cooperator to perform research,
extension, information or education service or work. In this case,
cooperators are State Land-Grant colleges and universities or State
Agricultural Experiment Stations.
There are three types of such Cooperative agreements commonly used by
the Agency:
A Broadform Cooperative Agreement is an agreement between the
Agricultural Research Service (ARS) and other parties covering a broad
area of cooperative research, extension, information or education work
where specific details are planned jointly as the project proceeds.
Such an agreement may cover a broad area and deal with numerous
individual research problems. Federal and State resources may be
brought to bear on a problem by mixing funds, personnel, equipment, lab
space, soil plots and computer use.
A General Cooperative Agreement is also an agreement between the ARS
and other parties. It describes in detail a particular research,
extension, information or education program usually of long duration and
funded on a fiscal year basis.
A Specifc Cooperative Agreement is similarly an agreement between ARS
and other parties, describing in detail a specific research, extension,
information or education project. The duration may be short or could
extend up to five years.
Broadform agreements are a means of providing nonprofessional
personnel to support research programs. The other two types of
agreements make available professional as well as nonprofessional
personnel.
Subsequent to the statements of positions by the parties summarized
below, the Agency distributed a memorandum to all employees of the
Agricultural Research Service dated September 1985, and notified the
Union by letter dated November 15, 1985, announcing discontinuance of
use of Broadform Cooperative Agreements by October 1986. In the letter
to the Union, the Agency stated that it had already discontinued the use
of General Cooperative Agreements. As these two types of agreements
would no longer be used, the Agency stated that the issues giving rise
to the Union's concerns no longer applied and asked the Union to
withdraw its petition with respect to the two proposals involving
Cooperative Agreements. By letter of December 17, 1985, the Union
declined to withdraw the petition as "not in the best interest of the
Union."
There is no basis for a finding that the Agency's announced intention
to discontinue some or all of the Cooperative Agreements has rendered
Union Proposals 1 and 2 moot. In any event, the continued existence of
such agreements is not itself a prerequisite to finding negotiable
proposals like the ones involved here which require that, to the extent
Cooperative Agreements exist, they will be administered in accordance
with applicable laws and regulations and the identity of Cooperative
Agreement employees will be furnished to the Union. Accordingly, we
proceed to consider the parties' contentions concerning the
negotiability of those proposals.
III. Union Proposals 1 and 2
Proposal 1:
Section 4 Upon request, location management will provide the
union President with an updated list of Cooperative Agreement
Employees.
Proposal 2:
Section 6 Area and location management agree to comply with OMB
Circular No. A-76 and all other applicable laws and regulations on
contracting out and cooperative agreements. (Only the underlined
portion of this proposal is in dispute).
A. Positions of the Parties
The Agency contends that Proposal 1 is nonnegotiable because "it does
not have custody over the requested information and it does not maintain
lists of cooperative agreement employees in the regular course of
business. Further, it is the Agency's position that the information
cannot be considered 'agency records' subject to disclosure under the
Freedom of Information Act." Agency Statement at 6. Finally, the Agency
contends that the Proposal 1 does not concern a condition of employment
of unit employees and that it thus has no bargaining obligation under
the Statute.
The Union's position is that Proposal 1 concerns conditions of
employment of unit employees, and that the Agency's arguments regarding
its records and the Freedom of Information Act (FOIA) are irrelevant.
The Agency's position as to Union Proposal 2 is that, like Proposal
1, it is nonnegotiable because it does not concern conditions of
employment of unit employees. In addition, the Agency asserts the
proposal is inconsistent with Government-wide rules and regulations.
The Union takes issue with both arguments.
B. Analysis and Conclusions
1. Union Proposal 1
Whether Union Proposal 1 is negotiable depends, first, on whether a
proposal for management to give the Union a list of Cooperative
Agreement employees concerns conditions of employment of unit employees.
Although Cooperative Agreement employees are not members of the
bargaining unit, we agree with the Union that knowledge of when, where
and how these employees work in relation to unit employees is directly
related to conditions of employment of unit employees. Specifically,
and without contravention by the Agency, the Union points out that it is
common to fill unit vacancies with Cooperative Agreement employees,
thereby reducing the size of the unit, which in turn reduces promotion
or reassignment opportunities for unit employees. Further, Cooperative
Agreement employees "work side-by-side with and are often trained by
unit employees." Union Reply Brief at 3. Because Cooperative Agreement
employees and unit employees are jointly enegaged in furtherance of a
common agency objective -- the accomplishment of a cooperative project
-- the information sought by the Union is necessary so that unit
employees can be properly evaluated on training assignments and on their
overall performance of the cooperative project. As the Authority
concludes that Union Proposal 1 does affect working conditions of unit
employees, it is necessary to review the other bases for the Agency's
assertion that the proposal is nonnegotiable.
As to the Agency's arguments that it does not maintain the data
sought and that such information cannot be considered Agency records
subject to disclosure under the FOIA, the Agency does not contend, nor
does anything in the record establish, that local management could not
provide such information. Further, the Agency does not assert, nor does
it otherwise appear, that providing this information would be
inconsistent with law or Government-wide regulation. We therefore
reject these Agency arguments as bases for finding the proposal
nonnegotiable.
In view of the foregoing, the Authority finds that the proposal that
"upon request, location management will provide the Union President with
a list of Cooperative Agreement employees" is negotiable.
2. Union Proposal 2
For the reasons set out above in the discussion of Proposal 1, the
Authority finds that Proposal 2 concerns conditions of employment of
unit employees. The Agency also asserts that the proposal is
nonnegotiable because it is inconsistent with Government-wide rules and
regulations. Essentially, it argues that an agreement to "comply with
OMB Circular No. A-76 and all other applicable laws and regulations on
contracting out and Cooperative agreements" is nonnegotiable as to the
underlined phrase because Circular No. A-76 does not regulate the use of
cooperative agreements. The Union states that since the reference to
OMB Circular No. A-76 is clearly followed by "and all applicable laws
and regulations," it "does not intend, and the proposal does not
require, OMB A-76 to be applied to the administration of cooperative
agreements." Union Response at 4. Rather, it states that the proposal
was inclusive because of the Union's "legitimate interest in (assuring)
the employer's compliance with applicable procedures when it exercise(s)
either the right to contract out or to enter a cooperative agreement."
Id. at 4-5.
If this proposal were revised to more precisely implement the Union's
stated intent of requiring decisions to contract out or to enter into
cooperative agreements merely to comply with applicable laws and
regulations, it would be negotiable. See American Federation of
Government Employees, AFL-CIO, National Council of EEOC Locals and Equal
Employment Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1),
enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert.
dismissed, 54 U.S.L.W. 4408 (U.S. April 29, 1986) (per curiam).
However, the Union's stated intent is inconsistent with the plain
language of the proposal which expressly requires OMB Circular A-76 to
be applied to cooperative agreements.
Consequently, although we find that Union Proposal 2 concerns
conditions of employment of unit employees, we conclude that to the
extent the proposal requires OMB Circular No. A-76 to be applied to
Cooperative Agreements, it is inconsistent with that Government-wide
regulation and therefore outside the duty to bargain under section
7117(a)(1) of the Statute.
IV. Union Proposal 3
Section 17 Any union representative required to represent an
employee at a location other than his own will be given official
time, travel and per diem. (Only the underlined portion of this
proposal is in dispute).
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because (1)
there is no entitlement to travel and per diem expenses for Union
representatives either by law or collective bargaining and (2) it is
inconsistent with a published Agency regulation for which there is a
compelling need.
The Union disputes in detail the Agency's argument regarding the
legality of negotiated provisions for travel and per diem expenses for
Union representatives, and argues that the Agency has not established a
compelling need for its published regulation under the rules and
regulations of the Authority.
B. Analysis and Conclusions
Since the parties filed their statements of position in this case,
the Authority has found a proposal which would require payment by an
agency of the travel expenses of Union representatives using official
time to be within the duty to bargain. National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No.
2 (1986), petition for review filed sub nom. Department of the Treasury,
U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986).
In Customs Service, the Authority found that agencies have
discretion, under the Travel Expense Act and implementing regulations,
to determine whether and under what circumstances travel related to
labor-management relations activities is sufficiently within the primary
interest of the United States so as to constitute official business for
which employees may receive appropriate expenses from Federal funds.
The exercise of that discretion was held to be subject to the
negotiation process. The Agency here makes no specific argument that
this proposal concerning the circumstances under which otherwise
appropriate travel expenses would be payable does not meet the statutory
and regulatory standards discussed in Customs Service. Moreover, the
proposal does not preclude case-by-case determinations as to the
appropriateness of specific travel and expenses which are necessary and
proper under law and governing regulation. See also American Federation
of Government Employees, AFL-CIO, National EPA Council and Environmental
Protection Agency, 21 FLRA No. 80 (1980) (Union Proposal 1). For the
reasons stated in those cases, the Authority concludes that Union
Proposal 3 is negotiable, unless it conflicts with an Agency regulation
for which there is a compelling need.
The Agency issued Personnel Letter No. 711-10 on May 16, 1984, "to
establish procedures for agencies as a result of the . . . decision of
the Supreme Court" in Bureau of Alcohol, Tobacco, and Firearms v.
Federal Labor Relations Authority, 464 U.S. 89 (1983) (BATF), and OPM
guidance contained in FPM Letter 711-162. The Personnel Letter stated
as background that travel and per diem payments to Union negotiators are
nonnegotiable and that such payments could only be made unilaterally by
the Agency. The letter also set out various procedures regarding
payment of travel and per diem as determined by the Agency. In its
statement of position, the Agency asserts that a compelling need exists
for this regulation because it implements a "mandate" to the Agency
flowing from the Supreme Court's decision in BATF, cited above. The
"mandate," according to the Agency, is that agencies comply with the
requirements of a decision of the Comptroller General, 46 Comp. Gen. 21
(1966), cited in BATF. However, in view of the Authority's decisions
subsequent to BATF finding that certain aspects of travel and per diem
are negotiable, BATF does not preclude negotiating over travel and per
diem expenses, nor would it constitute a "mandate" to sustain a
compelling need for the Agency's regulation under section 2424.11(c) of
the Authority's Rules and Regulations. See National Federation of
Federal Employees and U.S. Department of the Interior, U.S. Geological
Survey, Eastern Mapping Agency, 21 FLRA No. 127 (1986) (Provision 3).
Therefore, Union Proposal 3 is found to be negotiable.
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 Proposal 2, found to be nonnegotiable, 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 on Union Proposals 1 and
3. *
Issued, Washington, D.C., August 15, 1986.
/s/ J. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTE$ ---------------
(*) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.