24:0928(90)NG AFGE, NAT'L GSA COUNCIL NO. 236, LOCAL 1497 VS GSA -- 1986 FLRAdec NG



[ v24 p928]
24:0928(90)NG
The decision of the Authority follows:


24 FLRA NO. 90

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL GSA COUNCIL
(No. 236), LOCAL 1497

     Union

     and

GENERAL SERVICES ADMINISTRATION
REGION 3

     Agency

Case No. 0-NG-1190

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 four proposals. The Union made the proposals in response to an Agency-initiated change in the competitive area for employees in the Baltimore/Fort Meade area. The Agency, which had previously maintained one competitive area including employees assigned to Fort Meade and other Baltimore area posts of duty, proposed to establish a separate competitive area for employees located at Fort Meade.

II . Procedural Issues

The Agency raises two procedural grounds which it contends present bases for dismissal of the Union's petition. They are:

1) The dispute is moot in the face of the execution of a national agreement; and

2) the petition is untimely.

As to the first issue, the Agency claims that the national agreement now covers the general subject area involved in the petition. The Union contends that the terms of the national agreement do not foreclose bargaining at the local level on the proposals contained in the petition. As to the second issue, the Agency asserts that the petition was not timely filed in relation to a written declaration of nonnegotiability which the Agency had given the Union, without having been requested to do so. The Union counters that the petition was timely in relation to its written request to the Agency for an allegation of nonnegotiability.

For the following reasons, these arguments do not present a basis for dismissing the petition. Whether local negotiations on the proposals are permitted under the terms of the parties' national agreement cannot be resolved in this decision. The record in this case fails to provide any basis for substantiating the Agency's assertions. Further, 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, such as grievance and arbitration procedures. See, for example, 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, 306 n.6 (1984).

As to the timeliness question, the written allegation of nonnegotiability from which the Agency measures the timeliness of the petition was not in response to a written request by the Union. An unrequested allegation of nonnegotiability offered by an agency does not trigger the time limits for the filing of a negotiability appeal. Upon receipt of an unrequested allegation a Union has the option of filing a timely appeal at that point. It may, however, choose to continue bargaining, request an allegation at a later time and file a timely appeal based on that allegation. See, for example, International Brotherhood of Electrical Workers, AFL - CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982).

III . Union Proposal 1

A competitive area is the Baltimore Standard Metropolitan Area.

A. Positions of the Parties

The Agency argues that this proposal is nonnegotiable because it would prescribe the competitive area for employees not in the Union's bargaining unit as well as for [ v24  p929 ] those who are. The Union concedes this effect but asserts that it results from the OPM reduction-in-force (RIF) regulations which establish criteria for defining competitive areas, not because the Union intends to achieve this result. The Union also argues that, in any event, this effect is not grounds for finding the proposal nonnegotiable. Finally, it contends that the proposal is negotiable as an "appropriate arrangement" under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

The competitive area defined by this proposal would include, among others, employees in bargaining units represented by unions other than the one in this case. In view of this circumstance this proposal is to the same effect as that addressed in American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 24 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, No. 86-144 (D.C. Cir. Aug. 11, 1986). In that decision the Authority held that because the proposal would directly determine conditions of employment for nonunit employees the agency had no obligation to bargain over it. For the reasons discussed in that case, this proposal is not within the duty to bargain.

We turn now to the Union's claim that Proposal 1 is an "appropriate arrangement" under section 7106(b)(3) of the Statute. Section 7106(b)(3) expressly applies only when management is exercising one of the management rights set out elsewhere in section 7106. See American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118, slip op. at 4 (1985), remanded sub nom. American Federation of Government Employees, AFL - CIO v. FLRA, No. 85-1689 (D.C. Cir. Nov. 17, 1986). In this case, Proposal 1 is nonnegotiable because it directly determines conditions of employment of nonbargaining unit employees and not because it interferes with an enumerated management right. Thus, the Union's claim that Proposal 1 is an "appropriate arrangement" cannot be sustained.

IV . Union Proposal 2

Management and employees have the right to unilateral movement between the Baltimore Area.

A. With any unilateral movement in the Baltimore Area, the employer agrees to give the employee forty-five (45) days advance notice. [ v24  p930 ]

A. Positions of the Parties

The parties agree that there is no dispute as to the portion of the proposal involving a requirement to give advance notice. The Agency contends that the meaning of the remainder of the proposal is unclear but that if read literally it would allow "management and employees" the right to be reassigned whether or not the Agency approved the move. So interpreted, it claims the proposal is not within the duty to bargain because it would extend to nonunit employees--"management"--and it would interfere with management's rights under section 7106(a)(2)(A) and (B) to assign employees, assign work and to determine the personnel by which agency operations shall be conducted. The Union describes the remainder of the proposal as entitling employees who have been affected by a RIF to "preference" to a vacancy once the employer has decided to fill the position. It intimates that the proposal is similar to that addressed in American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801 (1985), enforced sub nom. American Federation of Government Employees, Local 2782 V. FLRA, 803 F.2d 737 (D.C. Cir. 1986).

B. Analysis and Conclusions

The Union's explanation of the proposal--that it seeks preference in filling vacancies for employees affected by a RIF--does not correspond to the wording of the proposal which is, in our view, extremely vague. In American Federation of Government Employees, AFL - CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 5) the Authority dismissed a petition as to a petition as to a proposal which was not sufficiently specific and delimited to provide a basis upon which to determine its negotiability. In that case the purpose and effect of the proposed language was not sufficiently clear to permit a determination as to whether its negotiation would be consistent with applicable laws and regulations. Likewise, the purpose and effect of this proposal are not clear enough to permit us to assess its impact on the management rights with which the Agency asserts it interferes. In view of this we have no basis on which to make any judgment as to its negotiability. We find, therefore, that the Agency has no obligation to bargain over it.

If the Union were to present a proposal reflecting its stated intent of obtaining "preference" for employees affected by a RIF in filling vacancies, the following [ v24  p931 ] decisions would be relevant to determining whether that proposal would be negotiable:

1) Bureau of the Census, 14 FLRA 801 (1985), cited above, in which the Authority found that a proposal which would require an agency to select qualified repromotion eligibles in filling bargaining unit vacancies was an appropriate arrangement under section 7106(b)(3). However, because the proposal conflicted with a Federal Personnel Manual (FPM) provision requiring preservation of management's right to select from other appropriate sources, it conflicted with a Government-wide rule or regulation and was nonnegotiable.

2) National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), where the Authority found that a proposal similar to that in Bureau of the Census was within the duty to bargain as an appropriate arrangement under section 7106(b)(3). The FPM provision at issue in Bureau of the Census did not apply to the employees involved in this case.

3) American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314 (1981), where the Authority found that a proposal which required only consideration as opposed to selection of repromotion eligibles for vacancies was negotiable as an appropriate arrangement. A proposal limited to consideration did not conflict with the above-mentioned FPM requirement.

V . Union Proposal 3

If there should be a reduction-in-force (RIF) in the Baltimore Area, it would be management's responsibility to see that all employees involved who need a security clearance and who are qualified be given such clearance. [ v24  p932 ]

A. Positions of the Parties

The Agency asserts that this proposal is nonnegotiable for several reasons. The Agency contends that this proposal is integrally related to Proposal 1 which seeks to incorporate Fort Meade into the same competitive area as Baltimore. Thus, it claims further that, if Proposal 1 is nonnegotiable and the Agency's establishment of a separate competitive area for Fort Meade stands unchallenged, this proposal is moot. The Agency also asserts that the National Security Agency (NSA) has responsibility for top secret clearances required for those GSA employees located at Fort Meade who are assigned to work at NSA and that the Agency has no authority over the matter. As to those clearances for which it does have responsibility, it contends that this proposal infringes on its management right to determine its internal security practices by subjecting its decisions on granting security clearances to arbitral review. Finally, it contends that decisions to deny or revoke security clearances are reserved exclusively to agencies under the terms of Executive Order No. 10450.

The Union asserts that the proposal is limited to requiring the Agency to take whatever administrative actions are necessary to facilitate the processing of security clearances for those employees needing them as a result of RIF actions. It states that the proposal is intended to neither infringe upon the Agency's rights to determine qualifications for clearances nor to require that employees be given clearances.

B. Analysis and Conclusions

The Union's stated intent that the proposal is limited to requiring only that the Agency facilitate the security clearance process by performing necessary administrative requirements is compatible with the language of the proposal. We adopt that interpretation of the proposal for purposes of this decision. Because the proposal does not require the Agency to grant a security clearance to an employee and leaves to the Agency's discretion the determination of which employees are qualified for clearance, we find that it does not interfere with the Agency's right to determine its internal security practices. In view of the proposal's limited scope, we reject the Agency's argument that it would impinge upon any discretion the Agency, arguably, may have under Executive Order 10450. As to those security clearances which are within the responsibility of NSA, we find that the Agency is obligated to bargain to the extent that it has discretion, even if its discretion is limited to making [ v24  p933 ] recommendations to NSA. See American Federation of State, County and Municipal Employees, AFL - CIO and Library of Congress, Washington, D.C., 7 FLRA 578 (1982) (Union Proposals XI - XIII), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). For these reasons, we find that Union Proposal 3 is within the duty to bargain. In so finding we note, contrary to the Agency's claim, that we do not regard this proposal as necessarily "moot" in view of our disposition of Union proposal 1. Based on the record, we cannot conclude that the proposal is solely relevant to those employees moving from other Baltimore posts of duty to Fort Meade. Because it does not appear from the record that all employees currently assigned to Fort Meade are subject to uniform security clearance requirements, we cannot rule out the possibility that the proposal might apply to employees already at Fort Meade who are not currently required to have a particular security clearance.

VI . Union Proposal 4

The FLRA Members disagree over the negotiability of this proposal. The majority opinion is on page 8 of this decision; Chairman Calhoun's dissent is on page 11

VII . Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposal 3. 1 The Union's petition is dismissed as to Proposals 1 and 2.

Issued, Washington, D.C., December 30, 1986.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v24  p934 ]

Union Proposal 4

The union proposes that a Core Area (Shops) be set up for those GSA employees unable to secure or (who) lose their clearance.

Majority Opinion

A. Positions of the Parties

The Agency argues, as it did with respect to proposal 3, that this proposal is integrally related to Proposal 1 and is moot if proposal 1 is nonnegotiable. It also argues that this proposal interferes with its rights under section 7l06(a)(2)(A) and (B) and 7106(b)(1) to assign employees, to assign work, to determine personnel by which Agency operations shall be conducted, and to determine the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty. The Union asserts that, for some employees, a security clearance is required because of the location of the employee's worksite and not because of the duties of the employee's position. It describes the proposal as requiring the Agency to establish a nonsecure worksite for employees in those circumstances who lose or cannot obtain a security clearance. It asserts that the proposal is an appropriate arrangement for employees involved in a RIF who could be eligible for assignment to positions which, as just described, do not in and of themselves require security clearances.

B. Analysis

The Authority has long held that the right under section 7106(a)(2)(A) to assign employees includes retention of discretion to determine the qualifications necessary to do the work as well as such job-related individual characteristics as judgment and reliability. American Federation of Government Employees, AFL - CIO, and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603 613 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. American Federation of Government Employees v. FLRA, 455 U.S. 945 (1982). In our view, the Agency's requiring a security clearance is an exercise of this discretion. The proposal would effectively infringe upon that discretion in that it would require the Agency to accommodate and retain employees who did not meet this qualification. Consequently, the proposal would interfere with the Agency's right to assign employees. [ v24  p935 ]

Given the Union's explanation that the proposal is limited to those circumstances where it is the location of the employee's worksite as opposed to the actual work which results in the need for a security clearance, we do not conclude that it would require the Agency to redesign the duties of positions. In view of this we reject the Agency's assertion that the proposal interferes with its rights to assign work or determine the personnel by which agency operations are conducted. Compare American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 5 FLRA 83 (1981), in which the Authority found that a proposal which was limited to determining which employees would perform their regular duties in a different location did not interfere with management's rights to assign employees or to assign work. Also in view of the limited scope of the proposal, the Agency's contention that the proposal would directly affect its discretion to make work assignments and, consequently, would interfere with its right under section 7106(b)(1) to determine numbers, types and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty cannot be sustained.

Having determined, however, that the proposal would interfere with management's rights, we must decide whether the proposal is an appropriate arrangement within the meaning of section 7106(b)(3). In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority stated that in making such determinations it would first ascertain whether a proposal is intended to compensate for, or address the adverse effects on employees of the exercise of management rights. If this determination is in the affirmative, we then would judge whether the proposal would interfere with management's rights to an excessive degree.

First, the proposal would apply to employees who are eligible for a reassignment in the context of a RIF which may entail a change in their security clearance requirements. It therefore appears designed to address potential adverse effects flowing from the RIF. 2 Second, RIFs are not [ v24  p936 ] within the control of employees and have a significant negative impact on them. See, for example, National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). By allowing some employees who lack security clearances to either continue their employment at the Agency's Fort Meade operations or to be reassigned there in lieu of more drastic actions, such as termination, the proposal could significantly ameliorate the adverse effects of the RIF. Moreover, the Union has stated the proposal is limited to those instances where the need for a security clearance is based solely on the location of the worksite and has no relationship to the duties of the job. The Agency has not explicitly controverted the Union's contention that these circumstances exist at Fort Meade. In view of this very limited intended meaning and applicability of the proposal, we find that the proposal's negative impact on the management right is limited. Given the significant potential benefits accruing to employees contrasted with the limited negative effects on the management rights, we find that, on balance, the record does not establish that the proposal would excessively interfere with the Agency's right. It therefore is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

VIII . Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposal 4. 3

Issued, Washington, D.C., December 30, 1986.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v24  p937 ]

Dissenting Opinion of Chairman Calhoun

I agree with the majority that Proposal 4 interferes with the Agency's right to assign employees. In my view, the proposal also interferes with the Agency's right to assign work under section 7106(a)(2)(B).

In National Federation of Federal Employees, Local 943 and Department of the Air Force, Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA No. 113 (1985), Proposal 2 concerned employees who were unable to perform their regular duties because of illness or injury but who were able to remain in a duty status. The proposal required the agency to "assist employees in finding assignments compatible with their medical condition if such a position is available, and vacant," or to temporarily tailor their regular duties to their medical limitations. The Authority stated that because the proposal would require the agency to redesign the duties of the position, the proposal directly interfered with the agency's right to assign work. Id. slip op. at 3.

Proposal 4 in this case would require the Agency to redesign the positions and possibly create new positions so that they could be filled by employees who do not have security clearances. While the actual duties of the position might not change, as in Keesler, the nature and qualification requirements of the position would be altered as a result of the proposal. Further, in addition to changing the position, the Agency would, of course, be required to assign work to the employees in those positions. For these reasons, I find that Proposal 2 directly interferes with the Agency's right to assign work.

I also disagree with the majority's holding that the proposal is an appropriate arrangement. Although the proposal would ameliorate the adverse effects on employees of a reduction in force, the situation involved in this case is quite different, in my view, from other situations involving RIFs. As I stated in National Treasury Employees Union and Department of Energy, 24 FLRA No. 52 (1986), for example, a proposal providing a hiring freeze on the filling of vacancies for which there were eligible bargaining unit employees during a RIF was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In that case, the proposed arrangement would benefit employees by "ensuring that employees who would otherwise be separated because of a RIF are placed in vacant positions for which [ v24  p938 ] they are eligible before the Agency seeks outside applicants." Id. slip op. at 7.

In the instant case, by contrast, the affected employees are those who are unable to obtain or who lose security clearances, possibly because of their action or inaction. Accordingly, Proposal 2 would require the Agency to reshape positions to retain employees who do not satisfy previously existing qualification requirements. Further, by requiring the Agency to establish a worksite in an unsecured area, the proposal could, depending upon the proximity of the unsecured worksite to the secured one, entail the movement or purchase of equipment and the reassignment of supervisory and/or management personnel.

On balance, I conclude that the benefit to affected employees is outweighed by the harm to the Agency's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). Therefore, I find that the proposal excessively interferes with the exercise of management's