26:0768(89)NG - AFGE Local 12 and Labor -- 1987 FLRAdec NG



[ v26 p768 ]
26:0768(89)NG
The decision of the Authority follows:


 26 FLRA No. 89
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 12, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-1027
 
                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 fourteen proposals.
 
    II.  Background
 
    The dispute concerning these proposals arose as the result of a
 reorganization which was implemented by the Agency under directives from
 the Secretary of Labor and which affected Labor-Management Services
 Administration (LMSA) employees.  One of those directives created, out
 of LMSA, the Office of Pension Welfare Benefit Programs (OPWBP) as an
 independent administrative subdivision within the Department, reporting
 directly to the Secretary of Labor.  Another directive created the
 Office of Labor-Management Standards (OLMS), under an Assistant
 Secretary of Labor, and the Office of Labor-Management Relations
 Services (OLMRS), which was placed within the Office of the Secretary
 (O/SECY).  LMSA was then abolished.  The Union is, with certain
 exceptions not relevant here, the exclusive representative for all
 Department of Labor employees in the Washington, D.C. Metropolitan Area,
 including employees in all the administrative subdivisions described
 above:  OPWBP, OLMS, OLMRS, and O/SECY.  See United States Department of
 Labor and National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO, 23 FLRA No. 67 (1986).
 
    III.  Procedural Issues
 
    The Agency contends that it has no duty to bargain concerning various
 proposals in this case because they are governed by provisions in the
 parties' Agreement or because no change has been made in the areas
 covered by the proposals sufficient to give rise to a duty to bargain.
 Due to the claimed existence of threshold issues concerning the duty to
 bargain, the Agency contends that the Authority has no jurisdiction to
 decide the proposals in this case.
 
    Where the conditions for review of negotiability issues have been
 met, a union is entitled to a decision by the Authority as to whether a
 proposal is negotiable under the Statute, despite the existence of
 additional issues in the case, for example, an alleged conflict between
 a proposal and a controlling agreement.  See American Federation of
 Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 D.C. Cir.
 1983).  To the extent that there are additional issues regarding the
 duty to bargain in the specific circumstances of this case, these issues
 should be resolved 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, 24 FLRA 302, 306 n.6 (1984).
 Accordingly, the claimed existence of threshold duty to bargain
 questions does not preclude us from determining the negotiability of
 proposals that are otherwise properly before us.
 
    A different situation is presented, however, for proposals as to
 which threshold duty to bargain issues are raised but for which the
 conditions for review of negotiability issues have not been met.
 Neither the court's decision in AFGE, Local 2736 nor the Authority's
 decision in Wurtsmith addressed that situation.  Specifically, as to
 Proposals 1, 8, 9, and 14 (set forth in the Appendix to this decision),
 the Agency contends only that the subject matter of these proposals is
 covered by the parties' Agreement and that there is no duty to bargain
 because management is neither proposing nor effecting any changes in the
 areas encompassed by these proposals.  The Agency does not argue that
 these proposals are inconsistent with law, rule or regulation.
 
    Under section 2424.1 of our Regulations, we will consider a petition
 for review of a negotiability issue only where the parties are in
 dispute as to whether a proposal is inconsistent with law, rule or
 regulation.  In this case, as noted above, there is no issue before us
 as to whether Proposals 1, 8, 9 and 14 are inconsistent with law, rule
 or regulation.  Therefore, we have no issues to consider as to those
 proposals in this negotiability proceeding.  In these circumstances, the
 conditions governing review of negotiability issues, as described in
 section 2424.1 of our Regulations, have not been met.  Moreover, as we
 noted above, other issues concerning Proposals 1, 8, 9 and 14 about
 which the parties are in dispute -- whether the subject matter of those
 proposals is covered by the parties' Agreement or whether management has
 proposed or effected a change in the areas covered by those proposals so
 as to give rise to a duty to bargain -- should be resolved in other
 appropriate proceedings, such as the parties' negotiated grievance
 procedure or the unfair labor practice procedures under section 7118 of
 the Statute.  Therefore, we will dismiss the Union's petition for review
 as to those proposals, without prejudice to the Union's right to file a
 negotiability appeal if the conditions governing review of negotiability
 issues are met and if the Union chooses to file such an appeal.
 
    To the extent that previous decisions of the Authority suggest that
 in similar circumstances -- where the conditions governing review have
 not been met -- we would consider these proposals, those decisions will
 not be followed.  See, for example, American Federation of Government
 Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 550
 (1985).  As to the remaining proposals in this case, the Agency alleges
 that they are inconsistent with law and/or Government-wide regulation;
 those proposals are properly before us and we will now resolve their
 negotiability.
 
    IV.  Proposal 2
 
    OPWBP, OLMRS, and OLMS will be included in the same competitive areas
 as OSECY for RIF pruposes.
 
    A.  Position of the Agency /1/
 
    The Agency contends that Proposal 2 is nonnegotiable because the
 proposed competitive area would encompass non-bargaining unit employees.
  The Agency also argues that the proposal conflicts with management's
 right, under section 7106(a)(1) of the Statute, to determine its
 organization.  Finally, the Agency contends that the proposal is
 inconsistent with 5 C.F.R. 351.402(b), a Government-wide regulation.
 
    B.  Analysis and Conclusions
 
    Based on the Agency's undisputed contention, we find that Proposal 2
 would define a competitive area within the Agency which would include
 non-bargaining unit employees.  The proposal, therefore, is to the same
 effect as the proposal in the Decision and Order on Remand in National
 Federation of Federal Employees, Local 1705 and General Services
 Administration, 22 FLRA No. 76 (1986), which the Authority found to be
 nonnegotiable as it directly determined conditions of employment of
 non-bargaining unit employees.  Consequently, we find, for the reasons
 and cases cited in General Services Administration, that Proposal 2 is
 not within the Agency's duty to bargain.  Moreover, in view of our
 decision concerning this proposal, it is unnecessary to consider the
 additional Agency arguments as to its nonnegotiability.
 
    V.  Proposals 3 -- 7
 
          Proposal 3
 
          For purposes of merit system Article 21, Section 3h, OPWBP,
       OLMRS, and OLMS will be considered a part of OSECY.  However,
       vacancy announcements will be posted in each of these offices in
       addition to the present OSECY posting system.
 
          Proposal 4
 
          For upward mobility purposes in Article 26, Section 5, OPWBP
       and OLMRS will be included in OSECY.  OLMS will continue as LMSA.
 
          Proposal 5
 
          For LMR purposes in Article 4, Section 4, OLMRS will be
       included in the OSECY.  OLMS and OPWBP will each have their own
       OMR committees.
 
          Proposal 6
 
          For representational purposes in Article 10, Section 2, OPWBP,
       OLMRS, and OLMS will have stewards representing all three offices
       as a part of the OSECY.
 
          Proposal 7
 
          For Step II grievances in Article 14, Section 2, OPWBP and
       OLMRS will be considered a part of the OSECY and will appeal to
       the Under Secretary and OLMS will continue as LMSA and appeal to
       the Assistant Secretary for LMS.
 
    A.  Position of the Agency
 
    The Agency contends that it has no duty to bargain concerning these
 proposals because the subject matter is covered by the parties'
 Agreement and no changes to that Agreement are being proposed.  The
 Agency also argues that these proposals are nonnegotiable because they
 conflict with management's right, under section 7106(a)(1) of the
 Statute, to determine its organization.
 
    B.  Analysis and Conclusions
 
    As we stated in Section III of this decision, the Agency's contention
 that it has no duty to bargain concerning these proposals does not
 preclude a negotiability decision in this case.
 
    These proposals specify which administrative subdivisions within the
 Department of Labor will be covered by particular provisions of the
 parties' Agreement and the manner in which those provisions will apply.
 The Union, however, did not submit a copy of the relevant provisions of
 that Agreement.  We have no way of knowing, therefore, what those parts
 of the Agreement provide and, as a result, no way of assessing whether
 their application as required by the proposals would affect the Agency's
 determination of its organization.  In short, we cannot determine, on
 the record before us, whether these proposals are negotiable.
 
    The parties bear the burden of creating the record on which the
 Authority will make a negotiability determination.  See American
 Federation of Government Employees, Local 12 and Department of Labor, 25
 FLRA No. 83 )1987) (Proposal 5).  Since the Union has not provided the
 relevant portions of the parties' Agreement, it has not met its burden
 of creating a record which is sufficient for the Authority to make a
 negotiability determination.  In the absence of that information, the
 Union's petition for review must be dismissed.  See American Federation
 of Government Employees, Local 12, AFL-CIO and Department of Labor, 26
 FLRA No. 34 (1987) (Proposal 6).
 
    VI.  Proposal 10
 
    Employees will retain their present space allocations after the
 transfer of functions.  /2/
 
    A.  Position of the Agency
 
    The Agency argues that it has no duty to bargain over Proposal 10
 because the proposal concerns matters which are covered by the parties
 Agreement and because management is neither proposing nor effecting any
 changes in the areas encompassed by these proposals.  Further, the
 Agency contends that the proposal is inconsistent with section
 7117(a)(1) of the Statute because it conflicts with a Government-wide
 regulation.
 
    B.  Analysis and Conclusions
 
    As we stated in Section III of this decision, the Agency's contention
 that it has no duty to bargain concerning these proposals does not
 preclude a negotiability decision in this case.  Moreover, while the
 Agency claims that Proposal 10 conflicts with a Government-wide
 regulation, it does not provide any information about the specific
 regulation in question.  The Agency simply asserts that the proposal
 "conflicts with a government-wide regulation regarding space." Statement
 of Position at 8.  As we noted earlier, it is well established that the
 parties bear the burden of creating a record upon which the Authority
 can make a negotiability determination.  American Federation of
 Government Employees, Local 12 and U.S. Department of Labor, 25 FLRA No.
 83 (1987) (Proposal 5).  In the absence of any reference or other
 information as to the particular regulation with which this proposal is
 alleged to conflict, we are unable to conclude that Proposal 10
 conflicts with a Government-wide regulation.  Consequently, since the
 Agency does not support its contention that this proposal is
 nonnegotiable and because it is not otherwise apparent that the proposal
 is contrary to law, rule or regulation, we conclude that Proposal 10 is
 within the duty to bargain under the Statute.
 
    As to the Agency's contention that it has no duty to bargain over
 Proposal 10 because the proposal concerns matters which are covered by
 the parties' Agreement and because management is neither proposing nor
 effecting any changes in the areas encompassed by the proposal, these
 are issues as to whether a duty to bargain exists at all in the
 circumstances of this case.  We noted in our discussion in Section III
 of this decision that these are issues which should be resolved in other
 appropriate proceedings.  We conclude, therefore, that to the extent
 that the Agency otherwise has a duty to bargain in the circumstances of
 this case.  Proposal 10 is within that duty to bargain.
 
    VII.  Proposal 11
 
          No employee formerly in LMSA will be downgraded or RIFed or
       otherwise penalized as a result of this change or future
       reorganizations that result from this change.
 
    A.  Position of the Agency
 
    The Agency contends that this proposal is nonnegotiable because it is
 inconsistent with management's right, under section 7106(a)(2) (A) of
 the Statute, to assign employees, lay off employees, or reduce employees
 in grade or pay.
 
    B.  Analysis and Conclusions
 
    Proposal 11 would prohibit the Agency from "RIFing," downgrading, or
 "penalizing" the transferred employees as a result of this or a future
 reorganization and, in effect, would require the Agency to guarantee the
 employment security of the effected employees.  In this regard, Proposal
 11 is to the same effect as Proposal 2 in American Federation of
 Government Employees, AFL-CIO, Council 236 and General Services
 Administration, 9 FLRA 825 (1982), which prohibited the layoff of
 transferred employees and provided for the guaranteed employment
 security of the effected employees.  In that case, the Authority found
 the proposal to be outside the duty to bargain since it would interfere
 with the Agency's right, under section 7106(a)(2)(A) of the Statute, to
 lay off employees.  Consequently, because Proposal 11 interferes with
 the Agency's right to lay off employees, it is, for the reasons set
 forth in General Services Administration, also outside the duty to
 bargain.
 
    VIII.  Proposal 12
 
          All present LMSA employees in the bargaining unit will remain
       in the bargaining unit following this transfer of function.
 
    A.  Position of the Agency
 
    The Agency contends that Proposal 12 is nonnegotiable because it
 requires that a determination be made as to which employees are in the
 bargaining unit.  The Agency asserts that the proposal is therefore
 nonnegotiable since the Authority can make bargaining unit
 determinations only in accordance with section 7105(a)(2)(A) of the
 Statute.  The Agency also argues that the proposal is nonnegotiable
 because it interferes with management's right to assign employees.
 
    B.  Analysis and Conclusions
 
    The proposal states that "all LMSA employees currently in the
 bargaining unit will remain in the bargaining unit(.)" It therefore
 seeks to preserve the bargaining unit status of former LMSA employees
 regardless of the effect of the reorganization on that status.  In
 essence, the proposal constitutes an attempt to determine the status of
 LMSA employees through negotiations.  Under these circumstances,
 however, the appropriate mechanism to obtain a determination on these
 matters is a clarification of unit petition filed pursuant to section
 2422.2(c) of our Rules and Regulations.  See Congressional Research
 Employees Association and The Library of Congress, 3 FLRA 737 (1980)
 (Section 2 of the Proposal).  The unit status of employees is not a
 matter which is properly resolved through the negotiability procedures.
 Thus, Proposal 12 is not properly before us.  See United States
 Department of Labor and National Council of Field Labor Locals, American
 Federation of Government Employees, AFL-CIO, 23 FLRA No. 67 (1986), for
 a discussion of the unit status of the employees affected by the same
 reorganization as gave rise to this negotiability appeal.
 
    IX.  Proposal 13
 
          No organizational changes will be implemented in any office
       following the transfers until employees and the union have been
       furnished full information about the changes as required in
       Article 4, Section 7, for at least 60 days and talks have been
       completed in accordance with 5 U.S.C. 7106.  All information
       previously requested by the union will be furnished.
 
    A.  Position of the Agency
 
    The Agency contends that the proposal is nonnegotiable because it
 conflicts with the Agency's right to determine its organization under
 section 7106(a)(1) of the Statute.  The Agency also argues that it has
 no duty to bargain as to this proposal because it goes to matters other
 than the transfers of functions.  Any dispute as to the application of
 the parties' Agreement should be decided under the negotiated grievance
 procedure.  Finally, as to the last sentence of the proposal, the Agency
 contends that it has provided the Union with all the information on the
 transfers of functions that is required by law and under the parties'
 Agreement.
 
    B.  Analysis and Conclusions
 
    Proposal 13 provides for a delay in implementing employee transfers
 resulting from an Agency reorganization until:  (1) the Union and
 employees have been furnished, for at least 60 days, "full information"
 about the changes as required by the parties' Agreement;  and (2) all
 talks have been completed as required by law.  The proposal further
 requires that all "information previously requested" by the Union be
 furnished.  The Union has not explained what it means by the phrases
 "full information" and "information previously requested." In this
 regard, Proposal 13 is to the same effect as Proposal 5 in American
 Federation of Government Employees, Local 12 and U.S. Department of
 Labor, 25 FLRA No. 83 (1987), which required the agency to delay a RIF,
 reorganization or employee downgrade until the agency provided the union
 with "the information request accompanying these proposals." In that
 case, we dismissed the union's petition for review because the record
 did not contain sufficient information to enable us to determine whether
 the proposal was within the duty to bargain.  Consequently, because the
 record in this case does not contain sufficient information to enable us
 to determine whether Proposal 13 is within the duty to bargain, for the
 reasons set forth in U.S. Department of Labor, the petition for review
 as to the proposal must also be dismissed.
 
    X.  Order
 
    To the extent that the Agency has a duty to bargain in the
 circumstances of this case, it must upon request (or as otherwise agreed
 to by the parties) bargain concerning Proposal 10.  /3/ The petition for
 review as to Proposals 2-7 and 11-13 is dismissed. The petition for
 review as to Proposals 1, 8, 9 and 14 is dismissed without prejudice to
 the Union's right to file a negotiability appeal if the conditions
 governing review of negotiability issues are met and if the Union
 chooses to file such an appeal.
 
    Issued, Washington, D.C., April 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union filed an explanation of the meaning of the proposals
 with its Petition for Review but did not file a Response to the Agency's
 Statement of Position.
 
    (2) In its allegation of nonnegotiability and Statement of Position,
 the Agency states the text of Proposal 10 as "Employees will retain
 their present space allocations after the transfer of functions;
 forever." However, in determining the negotiability of this proposal, we
 have used the text of the proposal as set forth in the Union's Petition
 for Review.
 
    (3) In finding that this proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.
 
 
                                 APPENDIX
 
    Proposals 1, 8, 9 and 14
 
          Proposal 1
 
          All offices and units that were formerly in LMSA will retain
       the same provisions of the LMSA Flexitime Agreement, except OPWBP
       will be entirely covered by the variable week.  Individuals
       transferred to other agencies will continue to be covered by the
       plan under which they worked under the LMSA Flexitime Agreement.
 
          Proposal 8
 
          The Joint Labor-Management Participation Circle Steering
       Committee for LMSA shall be renamed the Joint Labor-Management
       Participation Circle Steering Committee for OSECY-OPWBP-OLMS.
 
          Proposal 9
 
          Communication concerning the transfer of function shall be
       supplied to all employees formerly in LMSA.
 
          Proposal 14
 
          All former LMSA employees will continue to have full access to
       FPMs, DLSs, and other personnel information in the
 
 same manner which has existed in LMSA, including access to the shelves,
 containing this information, space to read information, and xerox
 machine to