27:0363(49)NG - AFGE Local 12 and DOL -- 1987 FLRAdec NG



[ v27 p363 ]
27:0363(49)NG
The decision of the Authority follows:


 27 FLRA No. 49
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-1044
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority on a petition for review of
 negotiability issues filed under section 7105(a)(2)(E) of the Federal
 Service Labor-Management Relations Statute (the Statute) and concerns
 the negotiability of ten proposals.
 
                              II.  Background
 
    The dispute concerning these proposals arose as the result of the
 Agency'a announcing its intention to implement a space reduction plan to
 comply with a General Services Administration (GSA) space reduction
 regulation -- GSA Federal Property Management Regulation (FPMR),
 Temporary Regulation D-68, the most recent version of which is FPMR
 Temporary Regulation D-73.  52 Fed. Reg. 4,293 (Feb. 11, 1987).
 
                          III.  Procedural Issues
 
    The Agency argues that it has no duty to bargain concerning the
 proposals because:  1) its space reorganization will not result in a
 change in conditions of employment sufficient to give rise to a duty to
 bargain;  2) the union bargained over the issues addressed in these
 proposals and has waived its right to bargain further;  and 3) the
 issues addressed in the proposals are more appropriately resolved
 through the parties' grievance and arbitration procedures.  Based on
 these claimed threshold issues concerning the duty to bargain, the
 Agency contends that the Authority lacks jurisdiction to determine the
 negotiability of the proposals regarding its space reduction efforts.
 
    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.  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, 14 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, 2, 7, 8, 9 and 10 (set forth in the Appendix to this
 decision), the Agency contends only that there is no duty to bargain
 because management is neither proposing no effecting any changes in the
 area encompassed by these proposals and, in the case of proposals 2 and
 9, that the subject matter is covered by the parties' Agreement.  The
 Agency does not argue that these proposals are inconsistent with law,
 rule, or regulation.
 
    Under section 2421.1 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, 2, 7, 8, 9 and 10 are inconsistent with law,
 rule or regulation.  There are therefore no issues as to those proposals
 for us to consider 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, 2, 7,
 8, 9 and 10 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.  American Federation of Government
 Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA No. 89
 (1987).
 
    As to the remaining proposals in this case, the Agency additionally
 alleges that they are inconsistent with law and/or Government-wide
 regulation.  Those proposals, even though the Agency asserts that
 elements of the threshold jurisdictional issues discussed above preclude
 the Authority's consideration, are properly before us and we will
 resolve the question of their negotiability.
 
                              IV.  Proposal 3
 
    The FLRA Members disagree over the negotiability of this proposal.
 The decision and order on Proposal 3 and Member Frazier's concurring and
 dissenting opinion immediately follow this decision.
 
                              V.  Proposal 4
 
          Supervisors will consider individual employee's request for
       partitioning of work space.  If such a request is denied, the
       supervisor will provide a written rationale for the denial to the
       affected employee and his/her representative.
 
    A.  Positions of the Parties /1/
 
    The Agency assets, primarily, that this proposal concerns
 nonbargaining unit, namely, supervisory employees and is, consequently,
 nonegotiable.  The Union asserts that this proposal is merely intended
 to ensure that it, as the bargaining unit employees' representative, is
 informed of any denials of requests concerning working conditions.
 
    B.  Analysis and Conclusion
 
    The Authority finds that the proposal would assign the duty of
 considering specific requests as to partitioning to particular Agency
 employees, "supervisors", in this instance.  As we noted in American
 Federation of Government Employees, AFL-CIO, Local 1858 and U. S. Army
 Missile Command, The U. S. Army Test, Measurement, and Diagnostic
 Equipment Support Group, the U. S. Army Information Systems Command --
 Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 6) the
 nonnegotiability of provisions which assign tasks to particular agency
 personnel is established in long-standing Authority precedent and should
 be familiar to union and management representatives.  Thus, for a reason
 different from that alleged by the Agency, we find that this proposal,
 by assigning specific duties to supervisors, violates management's right
 "to assign work" under section 7106(a)(2)(B) of the Statute and is,
 therefore, outside the duty to bargain.  See, for example, American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
 Service, 4 FLRA 384, 386 (1980).  Also, as we noted in connection with
 provisions 6, 8 and 10 in Redstone Arsenal Commissary, proposal 4 in
 this case is nonnegotiable only because it requires particular personnel
 -- supervisors -- to perform certain tasks, a requirement which appears
 to be subsidiary to the basic intent of the proposal.  Accordingly, our
 comments in that case concerning the avoidance of such defects are
 equally applicable here.
 
                          VI.  Proposals 5 and 6
 
                                Proposal 5
 
          Office changes and relocations which involve any reduction of
       space shall be in accordance with GSA allowances for employee
       office space table.
 
                         Table -- SPACE CATEGORIES
 
       TABLE OMITTED
 
                                Proposal 6
 
          Management will stop movement of offices from one location to
       another when the current office space (square feet per person) is
       adequate to accomplish the mission of the office.
 
    A.  Positions of the Parties
 
    The Agency contends that these proposals are nonnegotiable because
 they (1) concern nonbargaining unit employees;  and (2) contravene a
 Government-wide regulation, namely GSA's space reduction regulation --
 FPMR D-68.  The Union asserts that Proposal 5 describes the space
 allocation figures written into the parties' contract which must be
 followed until an alternative allocation table is negotiated.  Proposal
 6, according to the Union is intended to limit office relocations which
 serve "no apparent useful purpose."
 
    B.  Analysis and Conclusion
 
    Contrary to the Union's claim that the space categories table in
 proposal 5 was made part of the parties' collective bargaining
 agreement, we find nothing in the record to support this claim.
 Consequently, the Union's assertion that the figures in the table must
 prevail is rejected.
 
    As to the proposals themselves, both require the Agency to take or
 not take specific steps regarding its space reduction program.  One
 proposal would prescribe space allocations on the basis of square feet
 per person based upon general schedule grade rather than the latest
 overall space utilization objective of 135 square feet or less per
 person and the other would have the Agency discontinue space allocation
 efforts once its office space was adequate to accomplish its mission.
 Essentially, both proposals would preclude the Agency's implementation
 of the requirements of GSA's most recent FPMR Temporary Regulation D-73
 which prescribes an overall space utilization goal of 135 square feet or
 less per person.  The Authority, in American Federation of Government
 Employees, Local 12 and Department of Labor, 19 FLRA 161 (1985), ruled
 that Federal Property Management Regulations were Government-wide
 regulations within the meaning of section 7117(a)(1) of the Statute
 because they apply to the Federal civilian work force as a whole.
 Consequently, proposals 5 and 6 are outside the duty to bargain under
 section 7117(a)(1) of the Statute because they conflict with FPMR
 Temporary Regulation D-73, 52 Fed. Reg. 4,293 (Feb. 11, 1987), a
 Government-wide regulation.  /2/
 
                                VII.  Order
 
    The petition for review as to proposals 4, 5, and 6 is dismissed.
 The petition for review as to proposals 1, 2, 7, 8, 9, and 10 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., May 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                     DECISION AND ORDER ON PROPOSAL 3
 
                                Proposal 3
 
    To further the goal "to assure quality working environment," the
 following measures will be followed:
 
          a.  Windows will not be blocked by private offices.
 
          b.  Conference rooms and private offices will be located on the
       inner core of the space.
 
          c.  Bargaining unit employees will be given priority in
       allocating work space adjacent to windows.
 
          d.  All meeting areas will be equally accessible to all
       employees.
 
          e.  Lighting and ventilation surveys in relocated offices will
       be conducted upon request, and the appropriate remedies will be
       implemented.
 
    A.  Positions of the Parties
 
    The Agency contends that this proposal is nonnegotiable because it
 (1) concerns nonbargaining unit employees and (2) contravenes
 management's right to determine the technology methods, and means of
 performing work under Section 7106(b)(1) of the Statute.  The Union, in
 explaining this proposal, asserts that it is "intended to improve
 working conditions for OSHA employees similar to those provided other
 DOL agencies."
 
    B.  Analysis and Conclusion
 
    We conclude that this proposal is within the duty to bargain.
 
    The proposal (a) through (d) concerns the location of private
 offices, blockage of window areas, and the location of employee work
 areas near windows.  Thus, this proposal is materially to the same
 effect as the ones we found negotiable in American Federation of
 Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA
 No. 82 (1987).  In Department of Labor similar proposals, relating to
 similar concerns over office space were found to not be so intrinsically
 related to the working conditions of non-unit employees as to make them
 nonnegotiable.  In Department of Labor we also rejected a similar
 argument regarding the alleged contravention of the agency's rights to
 determine the technology, methods, and means of accomplishing its work.
 Moreover, subsection (e) of this proposal relates to adequate
 ventilation and lighting and, therefore, concerns conditions of
 employment within the duty to bargain.  See Internal Revenue Service,
 Chicago, Illinois and National Treasury Employees Union (NTEU) and NTEU,
 Chapter 95, 9 FLRA 648, 651 (1982), enforcement denied as to other
 matters sub nom. Internal Revenue Service v. FLRA, 717 F.2d 1174 (7th
 Cir. 1983);  National Treasury Employees Union and NTEU Chapter 80 and
 Department of the Treasury, Internal Revenue Service, Central Region, 8
 FLRA 197 (1982).  Consequently, since the Agency has not demonstrated
 that this proposal is inconsistent with applicable law or regulation and
 for the reasons cited in Department of Labor, we find that this proposal
 is within the duty to bargain.
 
    C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 3.  /3/
 
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    Member Frazier, concurring in part and dissenting in part:
 
    In my opinion in American Federation of Government Employees, Local
 12, AFL-CIO and Department of Labor, 25 FLRA No. 82 (1987), I stated
 that proposals, similar to subsections (a) through (d) of the one in
 dispute, would be negotiable to the extent they were intended to affect
 only (1) office space currently occupied by unit employees or (2)
 unoccupied office space which is equivalent to that currently occupied
 by unit personnel in the inner and outer areas.  In this case, as in
 Department of Labor, however, there is no indication in the record of
 the majority's interpretation that the proposal in dispute is so
 limited.  Consequently, for the reasons more fully set forth in
 Department of Labor, I respectfully dissent to the extent that my
 colleagues' decision extends to office space currently allocated to
 non-unit employees under subsections (a) through (d) of the disputed
 proposal.
 
    In regard to subsection (e) of the disputed proposal, the Authority
 found in Internal Revenue Service, Chicago, Illinois and National
 Treasury Employees Union (NTEU) and NTEU, Chapter 95, 9 FLRA 648, 651
 (1982), enforcement denied as to other matters sub nom. Internal Revenue
 Service v. FLRA, 717 F. 2d 1174 (7th Cir. 1983) that the correction of
 heating and air conditioning problems in office areas affected the
 working conditions of employees and was within the duty to bargain under
 the Statute.  In this case, the first portion of subsection (e)
 essentially seeks adequate ventilation for bargaining unit employees and
 is materially to the same effect as proposal 13-Part E. 19 found
 negotiable in American Federation of Government Employees, AFL-CIO,
 National Council of Social Security Field Office Locals and Department
 of Health Services, Social Security Administration, 24 FLRA No. 81
 (1986).  Moreover, I conclude that the remaining portion of subsection
 (e) concerning lighting is also a condition of employment within the
 duty to bargain.  See, for example, Social Security Administration,
 Office of Hearing and Appeals, Region II, New York, New York, 19 FLRA
 328 (1985) (Proposal 15).  Finally, I would agree with my colleagues
 that the Agency has not demonstrated that subsection (e) interfered with
 its rights to determine the technology, methods, and means of
 accomplishing its work.  Consequently, I conclude that subsection (e)
 would not interfere with the Agency's rights under section 7106(b)(1).
 
    Accordingly, for the reasons set forth above, I concur with my
 colleagues' decision with regard to subsection (e) of the disputed
 proposal.
 
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Henry B. Frazier III, 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 view of the determination regarding these proposals it is
 unnecessary to consider the Agency's other allegations pertaining to
 their negotiability.
 
    (3) In finding this proposal to be within the duty to bargain the
 Authority makes no judgment as to its merit.
 
 
                                 APPENDIX
 
  UNION'S PROPOSALS ADDRESSING THE ADVERSE IMPACT OF THE
 AGENCY'S SPACE
 REDUCTION PROGRAM
 
    (1) I. INTRODUCTION
 
    This is a Memorandum of Understanding entered into by the U.S.
 Department of Labor (DOL) and Local 12, AFGE, AFL-CIO, in accordance
 with the provisions of the DOL-Local 12 Collective Bargaining Agreement.
 
          The terms of this Memorandum of Understanding as specified
       below apply only to employees in the bargaining unit represented
       by Local 12 in the Occupational Safety and Health Administration
       (OSHA) who are affected by the OSHA reorganization which was
       effective October 2, 1983.
 
          Once ratified and approved, this Memorandum of Understanding
       will be duplicated by the Department and distributed to all
       affected OSHA employees in the bargaining unit and their