25:0622(50)NG - AFGE, National Council of SSA Field Operations Locals and SSA -- 1987 FLRAdec NG
[ v25 p622 ]
The decision of the Authority follows:
25 FLRA No. 50 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS Union and SOCIAL SECURITY ADMINISTRATION Agency Case No. 0-NG-1304 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This petition for review comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of three Union proposals. For the reasons discussed below, we find Proposals 1 and 3 to be outside the duty to bargain and Proposal 2 to be within the duty to bargain. II. Proposal 1 The assignment of volunteers and stay-in-schools to SSA programs will be for the purpose of supplementing and not replacing SSA employees. This will be accomplished consistent with applicable laws and Government-wide rules and regulations. A. Positions of the Parties The Agency contends that the proposal: (1) is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute; (2) does not concern unit employees insofar as it relates to volunteers and "stay-in-schools" /1/ who are not in the bargaining unit; and (3) improperly limits the Agency's right to lay off and/or make selections for appointment from any appropriate source. The Union contends that the intent of the proposal is not to deny management the right to hire "stay-in-schools" or to accept volunteer services but rather to provide a statement of purpose which is consistent with the Agency's own policy that the volunteer service will not be used to displace any employee or to staff a vacancy which is a normal part of SSA's work force. B. Analysis As understood by the Agency and as the plain language states, the proposal provides that work assignments to volunteer and "stay-in-school" appointees can only be made for the purpose of supplementing SSA employees and may not be made in any way that results in replacing SSA employees. Regarding the Agency's assertion that the proposal does not concern unit employees, we find that the assignment of bargaining unit work to volunteer and "stay-in-school" appointees who are not included in the bargaining unit relates to the working conditions of unit employees. Volunteer and "stay-in-school" appointees work side-by-side with unit employees and are jointly engaged in the furtherance of a common agency objective. They perform duties which "make the office operation more efficient and the regular employees' jobs less hectic." Union Petition at 1. Proposal 1 therefore affects the working conditions of unit employees. American Federation of Government Employees, AFL-CIO, Local 3748 and U.S. Department of Agriculture, Agricultural Reserach Service, Northern States Area, 23 FLRA No. 20 (1986) (Proposals 1 and 2), petition for review filed sub nom. Department of Agriculture, Agricultural Research Service v. FLRA, No. 86-1533 (D.C. Cir. Oct. 1, 1986). See also Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). As noted above, the proposal states that work assignments to volunteer and "stay-in-school" appointees will not be made for the purpose of replacing SSA employees. That language is mandatory. The proposal is therefore in the nature of a work preservation requirement. That is, management could make no work assignments to volunteer and "stay-in-school" appointees which might result in the loss of work for unit employees. By limiting the Agency's ability to make assignments to volunteer and "stay-in-school" appointees the proposal directly interferes with management's right to assign work. We have previously held that a proposal prohibiting the assignment of work or duties to nonunit employees violates the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663, 664 (1982) (Proposal 1). See also Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA No. 48 (1986) (arbitrator's award prohibiting agency from assigning bargaining unit work to nonbargaining unit personnel deficient as contrary to section 7106(a)(2)(B) of the Statute). Moreover, even if, as the Union contends, the proposal simply requires adherence to an existing Agency policy, that policy is itself an exercise of management's right to assign work and any attempt to incorporate that policy in a negotiated agreement would constitute an independent limitation on that right. See National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981). C. Conclusion Proposal 1 is nonnegotiable because it conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute. We do not reach the Agency's other contentions as to the nonnegotiability of the proposal. III. Proposal 2 Union personnel will have access to SSA facilities in carrying out their labor relations responsibilities. A. Positions of the Parties The Agency contends that this proposal concerns access to facilities and services for individuals employed by the Union who are not bargaining unit employees and as a result, does not pertain to negotiable conditions of employment. The Union states that Union personnel are not limited to bargaining unit employees who hold Union positions. It contends that the proposal establishes conditions under which the Union can accomplish its labor-management work. The Union also argues that its proposal neither mandates nor precludes any controls by SSA in such areas as security, hours of work, or the like. B. Analysis Representation of employees in matters concerning their employment clearly affects the working conditions of those employees. National Treasury Employees Union and Department of Treasury, U.S. Customs Service, 21 FLRA No. 2, slip op. at 2-3 (1986), petition for review filed sub nom. Department of Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. March 27, 1986); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union Proposal II), enf'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In Wright-Patterson Air Force Base, the Authority held that a proposal which provides union access to agency facilities for the purpose of carrying out labor-management relations activities is directly related to the conditions of employment of unit employees and is within the scope of the duty to bargain under section 7117 of the Statute. The Authority has also held that a request by a union for sufficient personnel to allow it to carry out its representational responsibilities under the Statute is inextricably tied to the conditions of employment of the employees it represents. Antilles Consolidated Education Association and U.S. Navy Department, Puerto Rico, 21 FLRA No. 114 (1986). Contrary to the Agency's claim, Proposal 2 is not outside of the duty to bargain because it provides for access to agency facilities for individuals employed by the Union who are not SSA employees. The Union's request for access to Agency facilities for designated representatives and personnel directly affects the Union's ability to carry out its representational responsibilities and therefore is inextricably tied to the conditions of employment of unit employees. C. Conclusion Proposal 2 is within the Agency's duty to bargain. IV. Proposal 3 Each employee, upon request, will be granted up to one day's administrative leave for bereavement purposes for an immediate relative or dependent. A. Positions of the Parties The Agency contends that the proposal attempts to add to the pay and allowances of employees without specific authorization by law and conflicts with 5 U.S.C. Section 5536. The Union contends that the proposal would allow an employee, in the case of an immediate relative's or dependent's death, administrative leave for one day to attend the funeral or memorial service, make necessary arrangements, or console another member of the family. B. Analysis Chapter 63 of title 5 of the United States Code governs the accumulation of both annual and sick leave and further authorizes agencies "to grant administrative leave excusing an employee from work when it is in the public interest." 5 U.S.C. Section 6326(c). 5 U.S.C. Section 6311 states that "(t)he Office of Personnel Management may prescribe regulations necessary for the administration of this subchapter." The coverage of the relevant OPM regulations is coextensive with that of chapter 63, covering most employees in the executive branch of Government. The OPM regulations governing leave are, therefore, "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 15). In American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 7), petition for review as to other matters filed sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986), we held that a proposal providing for administrative leave for personal emergency or illness was inconsistent with Government-wide regulations, including FPM chapter 630, subchapter 3-4.a(2), governing the administration of leave. We found that annual and sick leave were intended to cover the circumstances described in the proposal in that case and that the governing regulations did not contemplate personal emergencies or illness as justifiable grounds for granting administrative leave in lieu of annual leave or sick leave. Likewise, Proposal 3, in this case, is inconsistent with OPM regulations governing leave. Those regulations do not contemplate personal bereavement as justifiable grounds for granting administrative leave in lieu of annual leave. /2/ Specifically, FPM chapter 630, subchapter 3-4.a(2) provides that annual leave is intended for use in situations which include "a death in the employee's family." Thus, for the reasons stated more fully in Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81, we find that Proposal 3 is nonnegotiable because it is inconsistent with Government-wide regulations within the meaning of section 7117(a)(1). See also Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 15), in which we held that administrative leave is to be granted for only short periods of time and for limited purposes, not including personal business. C. Conclusion Proposal 3 is outside the Agency's duty to bargain under section 7117(a)(1) because it is inconsistent with an applicable Government-wide regulation. V. Order The petition for review as to Proposals 1 and 3 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 2. /3/ Issued, Washington, D.C., February 10, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) "Stay-in-schools," as explained by the Union, are high school and/or college students hired by the Social Security Administration to perform miscellaneous clerical duties. (2) We find that Proposal 3 is not restricted to situations where funeral leave might be granted in accordance with 5 C.F.R. Section 630.804. The Union rejected a management proposal reflecting funeral leave available under that section. Agency Response to Petition for Review at 5. (3) In finding that Proposal 2 is negotiable, we express no opinion as to its merits.