25:0979(82)NG - AFGE Local 12 and Labor -- 1987 FLRAdec NG



[ v25 p979 ]
25:0979(82)NG
The decision of the Authority follows:


 25 FLRA No. 82
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-776 
                                            17 FLRA 674
 
                     DECISION AND ORDER ON REMAND /1/
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question involved is whether a Union proposal concerning the
 location of office space is within the duty to bargain under the Federal
 Service Labor-Management Relations Statute (the Statute).
 
                              II.  Background
 
    In a previous decision in this case, American Federation of
 Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
 674 (1985), the Authority held, as relevant here, that two sections of a
 Union proposal concerning the location of office space (Union Proposal
 6, sections d and g) were outside the duty to bargain because they would
 directly determine conditions of employment for non-unit employees. That
 proposal provides:
 
                             Union Proposal 6
 
          d.  Private offices will be on the inside core near the main
       entrance.  Employee work areas will be on the outside of the room
       where there is better light and less internal office traffic.
 
                       .  .  .  .  .  .  .
 
 
          g.  Window areas will not be blocked by private offices and
       high partitions.
 
                       .  .  .  .  .  .  .
 
 
    The Union appealed the Authority's decision concerning proposal 6(d)
 and (g) to the United States Court of Appeals for the District of
 Columbia Circuit.  Local 12, American Federation of Government Employees
 v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985).
 
    While that appeal was pending, the D.C. Circuit issued its decision
 in Local 32, American Federation of Government Employees v. FLRA, 774
 F.2d 498 (D.C. Cir. 1985), remanding the Authority's orders in two cases
 involving a related issue.  /2/ In each of those cases, the Authority
 had held that a proposal seeking to define a competitive area within the
 Agency for purposes of a reduction-in-force (RIF) was outside the duty
 to bargain because in each instance it would directly determine
 conditions of employment of employees not within the bargaining unit.
 The D.C. Circuit's remand directed the Authority to address and resolve
 what the Court described as an apparent inconsistency between the
 Authority's findings in those cases and its finding in Association of
 Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
 and Air National Guard, 14 FLRA 38 (1984) that a proposed competitive
 area was within the duty to bargain.
 
    Thereafter, the Authority filed a motion for remand of this case so
 that it could further consider the issue presented in light of the
 Court's decision in Local 32, AFGE v. FLRA, referred to above, and in
 light of the Authority's consideration of the cases remanded by that
 decision.  The Court granted that motion.  Local 12, American Federation
 of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986).
 
                              III.  Analysis
 
    In its Decision and Order on Remand in the Office of Personnel
 Management case referred to above, the Authority discussed the factors
 to be addressed in determining the negotiability of proposals which
 affect the conditions of employment of unit and non-unit employees.
 American Federation of Government Employees, Local 32, AFL-CIO and
 Office of Personnel Management, 22 FLRA No. 49 (1986), petition for
 review filed sub nom. American Federation of Government Employees Local
 32 v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).  The Authority stated
 that it would balance the right of the union to negotiate over the
 conditions of employment of bargaining unit employees and the right of
 the agency to set the conditions of employment of nonbargaining unit
 employees.  It also stated:
 
          In weighing the parties' respective rights, we will determine
       whether the nature and degree of the impact of the proposal is so
       intrinsically related to the working conditions of nonunit
       employees so as to invade the purview of other unit
       representatives or require the agency to act in a way that will
       have a significant effect on the rights of employees not
       represented by the union offering the disputed proposal.  In such
       a case, management is not required to bargain.  However, where the
       proposal has only a limited or indirect effect on the interests of
       employees outside the bargaining unit it will be subject to
       appropriate negotiations.
 
    The disputed proposals in this case involve the location of office
 space.  The Authority has found that proposals concerning reductions in
 space, space allocation, and the arrangement of space concern conditions
 of employment and are negotiable unless an agency demonstrates that the
 proposals are inconsistent with applicable law or regulation.  See, for
 example, American Federation of Government Employees, AFL-CIO, Local 12
 and Department of Labor, 21 FLRA No. 129 (1986).  The Agency asserts
 that the proposals are nonnegotiable because they are "addressed to the
 space of non-bargaining unit employees." Agency Response at 7.  The
 Employer also states that "(e)ven if the space . . . involved bargaining
 unit employees," the proposals are bargainable only at its election
 because they conflict with its right to determine the technology,
 methods, and means of performing work under section 7106(b)(1) of the
 Statute.  Agency Response at 8.  We are unable to sustain the Agency's
 contentions and, accordingly, we reverse the Authority's previous
 decision in this case concerning Proposal 6(d) and (g).
 
    The Union maintains that the proposals relate only to the space to be
 occupied by unit employees.  It also asserts that some private offices
 are occupied by unit employees.  Union Response at 8.  It states that it
 did not intend "to negotiate over the office space of non-unit
 personnel." Union Response at 9.  The plain language of the proposals,
 however, encompasses all private offices and a fair reading of the
 proposals indicates that the proscriptions contained in them concerning
 private offices would apply to both unit and non-unit employees.  An
 analysis of the proposals in light of the Decision and Order on Remand
 in Office of Personnel Management, therefore, is necessary.
 
    In Office of Personnel Management, the proposal in dispute involved
 the competitive areas to be used in determining retention rights in a
 reduction in force.  By operation of applicable Government-wide
 regulations in that case, the negotiations over competitive areas for
 bargaining unit employees would necessarily determine the competitive
 areas of non-unit employees.  Thus, the effect on the conditions of
 employment of non-unit employees was significant and direct.  Moreover,
 the interests of the non-unit employees affected by the proposal
 concerned whether and in what position an employee would be retained in
 the Federal service.  These are vital interests.
 
    By contrast, the proposals in this case concern the location of
 office space, specifically whether private offices would be located
 adjacent to windows.  Although employees have legitimate interests in
 the location of their office space, these interests are in no way as
 vital as their interests in continued employment.  Further, the Agency
 offers no information concerning the numbers of non-unit employees who
 could be affected by the proposals, and it does not dispute the Union's
 assertion that some of the private offices are occupied by bargaining
 unit employees.  Thus, we have no basis for concluding that negotiations
 over the proposals would have direct and significant effects on non-unit
 employees.  In fact, consistent with the Union's stated intent,
 negotiations over the proposals could be limited to the office space
 occupied by bargaining unit employees only.
 
    In sum, we conclude under the analytical framework set forth in
 Office of Personnel Management, that the Union's proposals in this case
 are not so intrinsically related to the working conditions of non-unit
 employees so as to make them nonnegotiable.
 
    The Agency also asserts that the proposals would interfere with its
 rights to determine the technology, methods, and means of accomplishing
 its work.  In order to support such an assertion, the Agency must
 demonstrate both that its choice of office space design has a
 technological relationship to accomplishing its work and that the
 Union's proposals would interfere with the purpose for which the office
 space design was adopted.  See American Federation of State, County, and
 Municipal Employees, AFL-CIO, Local 2477 and Library of Congress,
 Washington, D.C. 7 FLRA 578 (1982).  In this case, the Agency offers no
 support whatever for its assertion.  Accordingly, we conclude that the
 proposals would not interfere with the Agency's rights under section
 7106(b)(1) so as to be bargainable at the election of the Agency only.
 
                              IV.  Conclusion
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 6(d) and (g).  /3/
 
    Issued, Washington, D.C., February 27, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Member Frazier's separate opinion begins on page 6.
 
    (2) The two cases remanded by the Court were American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 14 FLRA 754 (1984) (Local 32) and National Federation of
 Federal Employees, Local 29 and Department of the Army, U.S. Army Corps
 of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75
 (1984).
 
    (3) In finding this proposal to be within the duty to bargain, we
 make no judgment as to its merits.
 
 
    Member Frazier, concurring in part and dissenting in part:
 
    The proposals in this case concern office space.  To the extent that
 the proposals deal only with office space currently allocated to unit
 employees, I would find the proposals negotiable.  However, I must
 respectfully dissent from the determination of my colleagues that these
 proposals, to the extent that they deal with office space currently
 allocated to non-unit employees, are negotiable as well.  Such a
 determination is not justified by the language of the proposals or the
 contentions of the parties.  In addition, the test adopted by my
 colleagues in reaching their conclusion departs from Authority precedent
 and relies upon a consideration that injects a new and unwarranted
 element into the analysis of these sorts of proposals.
 
    The proposals state that:
 
          d.  Private offices will be on the inside core near the main
       entrance.  Employee work areas will be on the outside of the room
       where there is better light and less internal office traffic.
 
          g.  Window areas will not be blocked by private offices and
       high partitions.
 
    The parties view these proposals somewhat differently.  The Agency
 adverts to the undisputed fact that certain offices subject to the
 proposals are occupied by nonbargaining unit employees.  The Union, in
 contrast, contends that the proposals "refer only to space to be used by
 bargaining unit employees." However, both parties agree that the private
 office space referred to in the proposals does include some office space
 occupied by non-unit employees.
 
    Neither the plain language of the proposals nor the submissions of
 the parties conclusively establishes the intended effect of the
 proposals.  It is thus unclear, based on this record, whether and to
 what extent the proposals affect the working conditions of non-unit
 employees.
 
    To the extent that the proposals are intended to affect only (a)
 office space currently occupied by unit employees or (b) unoccupied
 office space which is equivalent to that currently occupied by unit
 personnel in the inner and outer areas (an interpretation rejected by my
 two colleagues in the Authority's opinion in this case), I would find
 the proposals negotiable.  Consistent with this understanding of the
 proposals, the only office space with which the proposals would be
 concerned would be space identical or equivalent to that currently
 occupied by unit employees.  To hold the proposals, thus understood, to
 be negotiable would be fully consistent with established Authority
 precedent.  Under this interpretation, the proposals, dealing only with
 office space currently allocated to unit employees, would have at most
 only a limited or indirect effect on the interests of employees outside
 the unit.  See American Federation of Government Employees, Local 32,
 AFL-CIO and Office of Personnel Management, 22 FLRA No. 49, slip op. at
 5 (1986).
 
    If however, one interprets the proposals as do my colleagues, a
 contrary result is required.  Under this interpretation, the proposals
 are intended to apply to all office space in the area where unit
 employees are situated.  This would include office space occupied by
 non-unit personnel.  The Union would thus be seeking to determine, as a
 direct consequence of the proposals, working conditions of certain
 non-unit employees along with those of employees in the unit. Such a
 proposal, "so intrinsically related to the working conditions of
 non-unit employees so as to directly determine and prescribe their
 conditions of employment," is not within the duty to bargain under
 established Authority precedent.  Id., slip op. at 7.
 
    My colleagues avoid the result required by OPM through application of
 the novel concept of "vital interests." They appear to reason that OPM,
 which concerned the determination of competitive areas for reduction in
 force purposes, involved "vital interests," whereas the instant case
 involves interests which "are in no way as vital." I cannot agree with
 this rationale.
 
    The concept of "vital interests" has never been part of the test to
 determine whether proposals which affect both unit and non-unit
 personnel are within the duty to bargain.  Further, the quantitative
 classification of interests suggested by the majority's test does not
 find any support in the Statute.  To the contrary, in any particular
 bargaining situation the Statute recognizes only the rights of the
 particular exclusive representative to bargain on matters affecting the
 working conditions of unit employees.  The Statute also recognizes the
 independent rights of "non-unit" personnel.
 
    Generally speaking, "non-unit personnel" can include various groups
 of employees, including personnel who have chosen to be represented by
 another union, personnel who have chosen not to be represented, and
 personnel excluded by the Statute from any representation.  Consistent
 with these distinctions, the Authority has heretofore limited an
 agency's duty to bargain with a union to proposals whose direct effects
 are restricted to employees in the unit for which the union is
 bargaining.
 
    The majority's decision in this case alters this principle.
 Application of the majority's "vital interests" test effectively
 empowers unions to directly negotiate "non-vital" conditions of
 employment for employees other than those for whom they are the elected
 representatives, including possibly employees represented by a different
 labor organization.  As to this latter class of employees, the "vital
 interests" test establishes a bargaining preference concerning so-called
 "non-tival" conditions of employment for whichever bargaining unit first
 comes forward with a proposal affecting those matters.  Such results do
 not honor the requirement of section 7102 of the Statute that employees
 be protected in their right "to engage in collective bargaini