27:0375(51)NG - AFGE Local 644 and DOL, Mine Safety and Health Administration -- 1987 FLRAdec NG



[ v27 p375 ]
27:0375(51)NG
The decision of the Authority follows:


 27 FLRA No. 51
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 644
 Union
 
 and
 
 DEPARTMENT OF LABOR, MINE SAFETY 
 AND HEALTH ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-1082
 
                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 six
 proposals which resulted from the relocation of the Agency's Waynesburg,
 Pennsylvania facility.  We find that proposals 2, 6, 7 and 8 are within
 the duty to bargain.  We find that proposals 3 and 4 are not within the
 duty to bargain.
 
                          II.  Preliminary Issues
 
    A.  Motion to Dismiss
 
    The Agency filed a motion to dismiss the petition for review as to
 Proposals 2, 4, 6, 7, and 8 on the ground that they are not sufficiently
 specific and delimited to permit us to decide the negotiability issues.
 The Union did not file a reply brief.  We find that the proposed
 language of each proposal is sufficiently specific to permit us to
 determine whether it is consistent with applicable law, rule or
 regulation and, thus, negotiable under the Statute.  See National
 Federation of Federal Employees, Local 561 and Department of the Army,
 U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA 759 (1985), and
 the case cited in the decision.  Therefore, we deny the motion.
 
    B.  Other Threshold Issues
 
    The Agency contends, generally, that it has no duty to bargain and
 that the matters in dispute are more appropriately resolved through
 unfair labor practice and arbitration procedures.  In particular, it
 asserts in regard to Proposals 4, 7, and 8 that 1) no change in working
 conditions was made which would obligate it to bargain over them;  and
 2) the matters addressed in these proposals are covered by the parties'
 agreement and are, therefore, more appropriately resolved through the
 parties' grievance procedures.  The Agency essentially contends that the
 Authority lacks jurisdiction to decide the negotiability of the
 proposals in this case.  We conclude that the proposals are properly
 before us in this negotiability appeal.
 
    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.
 
    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.  American Federation of Government Employees, Local 12,
 AFL-CIO and Department of Labor, 26 FLRA No. 89 (1987).  In this case,
 there are issues raised concerning whether the proposals are
 inconsistent with law, rule or regulation.  Consequently, these
 proposals are properly before us and we will now resolve their
 negotiability.
 
                             III.  Proposal 2
 
          Loading and unloading space shall be provided in an accessible
       area as near to the building as possible.
 
    A.  Positions of the Parties /1/
 
    The Union contends that the Agency has negotiated over similar
 proposals at four other offices.  It states that the intent of the
 proposal is not to bargain over a reserved management right but, rather,
 to ensure that the bargaining unit employees do not have to carry heavy
 mine inspection equipment very far when they return to the office at the
 end of the work day.  The proposal seeks to accomplish this by securing
 a loading space located near the office.
 
    The Agency contends that because the disputed proposal does not
 specify a particular location for a loading space, it would require
 negotiations over all available space.  It claims that since some of
 this space may constitute a part of the technical means of performing
 the Agency's work, the proposal seeks bargaining over a matter related
 to the technology, methods, and means of performing work, which is
 negotiable only at its election under section 7106(b)(1).
 
    B.  Analysis and Conclusion
 
    The proposal is intended to minimize the distance that bargaining
 unit employees will have to carry mine inspection equipment.  It is not
 intended to, and would not by its language, interfere with the Agency's
 right to decide the technical means and methods of accomplishing its
 mission.
 
    The proposal merely calls for locating the equipment loading and
 unloading area in an accessible area as near to the Agency's office as
 possible.  It does not require the Agency to designate any particular
 space for this purpose.  The Agency has not demonstrated how the request
 that the loading area be located in an accessible area as close as
 possible to the office relates to the technology, methods, or means used
 by the Agency for accomplishing or furthering the performance of its
 work.  In the absence of such a showing, the location of the loading
 area would be merely incidental to the performance of the Agency's work
 and would be principally related to matters affecting working conditions
 of employees.  Finally, noting that the Agency does not claim that this
 proposal is inconsistent with any other applicable law, rule or
 regulation, and no such inconsistency is apparent, we find that Proposal
 2 is within the duty to bargain.  American Federation of State, County
 and Municipal Employees, AFL-CIO and Library of Congress, Washington,
 D.C. 7 FLRA 578 (1982) (Proposal IX), enforced sub. nom. Library of
 Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
 
                              IV.  Proposal 3
 
          Employees shall not be required to physically move any material
       or equipment other than their personal property during this move.
 
    A.  Positions of the Parties
 
    The Agency contends that this proposal violates the Agency's right
 "to assign work" pursuant to section 7106(a)(2)(B) of the Statute.  The
 Union asserts that similar proposals have been negotiated by the Agency
 at other offices.  It further asserts that the management right to
 assign work only concerns work related to an employee's official job
 duties and moving is not encompassed within a mine inspector's job
 description.
 
    B.  Analysis and Conclusion
 
    Management's right "to assign work" under section 7106(a)(2)(B)
 includes the right to determine the particular duties to be assigned and
 the particular employee to whom or position to which duties will be
 assigned." National Treasury Employees Union and Department of the
 Treasury, Bureau of the Public Debt, 3 FLRA 679, 775 (1980) aff'd sub
 nom. National Treasury Employees Union v. Federal Labor Relations
 Authority, 691 F.2d 553 (D.C. Cir. 1982).  The Union's argument that
 management's right only applies to duties contained in a position
 description misses the point.  A position description merely reflects
 the duties which have been assigned to a particular position, but is not
 a limitation on the duties which may be assigned.  National Federation
 of Federal Employees, Local 1622, and Department of the Army,
 Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578,
 581 (1984).  While a proposal to require position descriptions to
 accurately reflect work assigned to the employee is negotiable, American
 Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
 Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
 FLRA 153 (1979) (Proposal II), enforced 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), a proposal such as
 Proposal 3 which expressly precludes the Agency from requiring employees
 to perform certain duties directly interferes with management's right to
 assign work.  The fact that the Agency may have agreed to similar
 clauses in other instances as claimed by the Union is not a factor
 relevant to the negotiability of the proposal, with which we are alone
 concerned in this proceeding.  Consequently, the proposal is
 nonnegotiable.
 
                              V.  Proposal 4
 
          Suitable shower and sanitary facilities shall be provided for
       all employees.
 
    A.  Positions of the Parties
 
    The Union intends this proposal to obtain shower and sanitary
 facilities for the use of all bargaining unit employees.  It asserts
 that the parties' agreement does not cover sanitary facilities and does
 not provide showers for all employees.  The Agency contends that the
 shower facility issue was fully bargained and made a part of the
 parties' agreement in Article 25, Section 7(B) which provides shower
 facilities for mine inspection personnel only while sanitary facilities
 are provided to all employees according to GSA regulation.  It therefore
 asserts that there is no duty to bargain over sanitary facilities since
 it is already obligated to provide them under the parties' agreement.
 It also asserts that there is no duty to bargain over shower facilities
 for mine inspectors because they are provided for in the parties'
 agreement.  Finally, it claims that showers are not a condition of
 employment of non-inspection, administrative personnel and it,
 therefore, has no duty to bargain over them.
 
    B.  Analysis and Conclusion
 
    With respect to this proposal, the Agency raises issues (1) as to its
 duty to bargain in the specific circumstances of this case;  and (2) as
 to whether the proposal is negotiable under the Statute.  Specifically,
 as to (1) the Agency asserts that insofar as the proposal is concerned
 with shower facilities for mine inspectors and sanitary facilities for
 all employees, it is outside the Agency's duty to bargain only because
 those matters are governed by provisions of the parties' agreement.  It,
 therefore, asserts that disputes over these matters should be resolved
 through the parties' grievance procedures.  Since the Agency's sole
 claim is that the proposal as regards showers for mine inspectors and
 sanitary facilities for all employees is outside of its duty to bargain
 in the 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).
 
    However, as to (2), to the extent that the proposal is concerned with
 shower facilities for non-mine inspection employees, the Agency contends
 that it is not within the duty to bargain because it is not a condition
 of employment for non-mine inspection employees.
 
    In construing the duty to bargain under the Statute, the Authority
 has found that proposals which concern matters directly affecting "the
 work situation and employment relationship" of bargaining unit employees
 are within the duty to bargain.  See, for example, Antilles Consolidated
 Education Association and Antilles Consolidated School System, 22 FLRA
 No. 23 (1986);  National Treasury Employees Union and Internal Revenue
 Service, 3 FLRA 693 (1980).  See also American Federation of Government
 Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 2 FLRA 604, 606 (1980), enforced 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).
 
    The explicit language of the proposal requires the Agency to
 negotiate over shower facilities for all employees including those who
 are not mine inspectors.  However, as claimed by the Agency, we do not
 find anything in the record of the case which supports a finding that a
 shower facility is a matter which directly affects the work situation
 and employment relationship of non-mine inspection employees.
 Consequently, this is not the situation the Authority faced in American
 Federation of State, County and Municipal Employees, AFL-CIO and Library
 of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced sub nom.
 Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), where the
 Authority found Proposal XVI, regarding showers for custodians and
 groundskeepers who came into contact with dirt, dust, and chemicals in
 the course of their employment, to be within the duty to bargain.  In
 this case there is no indication that non-mine inspection employees work
 in circumstances which would cause a shower facility to be a matter
 directly affecting their work situation and employment relationship.
 
    In the absence of any explanation by the Union as to how this
 proposal would relate to the conditions of employment of non-mine
 inspection employees, we find that the proposal concerns matters which
 are not directly related to their conditions of employment and is,
 therefore, outside the duty to bargain.  See National Association of
 Government Employees, Local R5-168 and Department of the Army,
 Headquarters 5th Infantry Division and Fort Polk, Louisiana, 19 FLRA 552
 (1985);  see also Maritime Metal Trades Council and Panama Canal
 Commission, 17 FLRA 890 (1985) (Proposals 1 and 2).
 
                              VI.  Proposal 6
 
          A means shall be provided for handicapped persons to enter the
       office.
 
    A.  Positions of the Parties
 
    The Union asserts that the intent of this proposal is to have the
 Agency implement and/or supplement the General Services Administration's
 (GSA) minimum requirements in order to make meaningful accommodations
 for handicapped persons.  The Agency contends that this proposal would
 require bargaining on all means used to assist handicapped persons enter
 the building and would, therefore, conflict with sections 7103(a)(14)(C)
 and 7117(a) of the Statute to the extent that such a matter is
 specifically provided for by Federal statute and Government-wide
 regulations.  Finally, the Agency contends that this proposal would
 apply to nonbargaining unit employees and to the general public and,
 consequently, is not a condition of employment.
 
    B.  Analysis and Conclusions
 
    This proposal is within the duty to bargain.  The Agency's
 contentions are without substance.  The proposal clearly does not
 require bargaining on "all" means as claimed by the Agency.  It simply
 requires that some means be provided.  There is nothing in the record to
 indicate that the Union's proposal is inconsistent with the pertinent
 regulations regarding accommodations for the physically handicapped in
 41 CFR subpart 101-19.6 or that this particular situation is covered by
 an exception outlined in 41 CFR Section 101-19.604.
 
    Further, we reject the Agency's contention that since a means of
 access provided under this proposal could be used by nonbargaining unit,
 handicapped employees and the general public, the proposal does not
 concern a condition of employment.  A bargaining proposal which directly
 affects the conditions of employment of bargaining unit employees as
 this one and is otherwise consistent with applicable laws and
 regulations is within the duty to bargain despite the fact that it also
 may effect employees outside the bargaining unit.  American Federation
 of Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 22 FLRA No. 49 (1986) (slip o. at 5), petition for review
 filed sub nom. American Federation of Government Employees, Local 32,
 AFL-CIO v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).
 
    Finally, the Agency does not contend that it is without discretion to
 implement the proposal or to recommend the matters proposed to the
 appropriate GSA official who would have the authority to effectuate
 recommendations concerning access to the office by the handicapped.  Of
 course, if the Agency is without total discretion to implement the
 proposal, the Agency is obligated to bargain to the extent of its
 limited discretion.  Library of Congress v. FLRA, 699 F.2d 1280 (D.C.
 Cir. 1983).
 
                             VII.  Proposal 7
 
          Suitable air conditioning and/or heat be provided in all
       working areas.
 
    A.  Positions of the Parties
 
    The Agency essentially contends that because the proposal is vague it
 violates Government-wide regulations, namely, the Federal Property
 Management Regulations at 41 CFR 101-20.116-3 which mandate seasonal
 temperature ranges for the interior space of Government-owned or leased
 facilities.  Citing Internal Revenue Service v. FLRA, 717 F.2d 1174 (7th
 Cir. 1983), it contends further that bargaining over the proposal would
 be inconsistent with the requirements of an effective and efficient
 Government and in conflict with section 2101(b) of the Statute because
 it will follow the same temperature regulations before and after the
 move and, consequently, will not have changed working conditions.
 
    The Union asserts that the new offices will be in a converted
 warehouse and that consequently this proposal is to ensure that a
 tolerable working climate will be maintained.  It notes that use of the
 word "suitable" is not intended to require the Agency to vary from GSA
 guidelines.
 
    B.  Analysis and Conclusion
 
    The Agency's contention that the proposal violates Government-wide
 regulations cannot be sustained.  First, there is nothing in the record
 to indicate how or which regulation might be violated.  Second, the
 Union specifically asserts that it does not intend the proposal to
 effect any variation from pertinent GSA regulations, e.g., 41 CFR
 Section 101-20.116-3, Cooling and heating energy conservation policies
 and procedures.  This intended meaning is consistent with the language
 of the proposal and we adopt it for the purpose of this decision.
 
    Moreover, the Agency's reliance on the IRS case is misplaced.  In
 that case, the U.S. Court of Appeals for the Seventh Circuit held that
 various agency modifications in existing office space to accommodate
 transferred employees were not material changes sufficient to give rise
 to an obligation to bargain over their impact and implementation.  The
 court did not rule on whether the matters involved were within the
 statutory scope of mandatory bargaining.  It was concerned only with
 whether the agency was under any obligation to bargain based on the
 circumstances.  Consequently, the IRS case is inapposite to the question
 of negotiability with which we are concerned in this proceeding.  As
 previously explained in II.B., the issues with which we are concerned
 here are whether the proposed language is inconsistent with applicable
 law, rule, or regulation and not whether there is an obligation to
 bargain under the particular circumstances of this office move.
 
    Finally, we find that the subject of the Union's proposal clearly
 involves a condition of employment.  See American Federation of
 Government Employees, AFL-CIO, National Council of Social Security Field
 Office Locals and Department of Health and Human Services, Social
 Security Administration, 24 FLRA No. 81 (1986) (Proposal 13-Part E. 19).
  Further, the Agency has not demonstrated that this proposal conflicts
 with any law, rule or regulations.  Accordingly, the obligation to
 bargain extends to this proposal.
 
                             VIII.  Proposal 8
 
          Suitable parking be provided for government and private
       automobiles.
 
    A.  Positions of the Parties
 
    The Union contends that this proposal seeks to ameliorate the impact
 of the relocation on parking for Government-owned vehicles (GOVs) and
 privately owned vehicles (POVs).  It asserts that parking for GOVs and
 POVs was free and adjacent to the office at the old location while
 parking at the new location is several blocks away.  Further, to support
 its assertion of negotiability it cites a FLRA decision by an
 administrative law judge (ALJ) ordering bargaining over parking spaces.
 
    The Agency disputes the Union's statement that parking for GOVs and
 POVs at the old location was free.  Additionally, the Agency contends
 that the proposal would (1) require negotiations over the technical
 method of performing the Agency's mission under section 7106(b)(1);  (2)
 conflict with Government-wide parking regulations set out in 41 CFR
 Sections 101-20.111 through 20.117-4 and (3) conflict with the Agency's
 right to determine its budget under section 7106(a)(1).  The Agency also
 asserts that the proposal is inconsistent with an effective and
 efficient government under section 7101(b) and that the Union waived
 bargaining over parking for GOVs when it agreed to Article 17 (GSA
 Vehicles or Leased Vehicles) of the parties' agreement.  Finally, the
 Agency asserts that the criteria to assign parking spaces to POVs is
 outlined in its parking regulations and that since these regulations are
 incorporated by reference into the parties' negotiated agreement
 (Article 2, Sections 1 and 6), there is no existing duty to bargain over
 this subject and the decision of the ALJ cited by the Union can be
 distinguished on this basis.
 
    B.  Analysis and Conclusion
 
    As was discussed previously, any factual disputes between the parties
 are irrelevant to a determination concerning the negotiability of a
 particular proposal.  Thus, we are not concerned in this proceeding with
 whether parking was free at the old location, whether the Union waived
 its right to bargain certain matters, and whether certain other matters
 are governed by the parties' existing agreement.
 
    We turn now to the claim that the proposal is inconsistent with law,
 rule, or regulation.  The Agency's contentions that negotiations over
 the disputed proposal will be contrary to the Statute's admonition to
 promote an efficient and effective Government or will interfere with its
 choice of "technology" under section 7106(b)(1), and that the proposal
 conflicts with Government-wide and Agency parking regulations are not
 supported by the record presented.  In particular, although the
 Authority has previously determined that GSA Federal Property Management
 Regulations as codified at title 41 of the Code of Federal Regulations
 generally constitute "Government-wide regulations" within the meaning of
 section 7117(a) of the Statute, National Treasury Employees Union,
 Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748
 (1980), there is nothing in the record to indicate that the proposal
 would violate any provisions of title 41 of the CFR.  /2/ Likewise,
 there is nothing to indicate that the disputed proposal would conflict
 with Agency parking regulations.  The Authority has recognized that an
 agency's discretion regarding parking allocation may be limited.
 However, to the extent that the Agency has discretion to carry out the
 requirements of Proposal 8, even if its discretion is limited to
 requesting GSA to take appropriate action, it is within the duty to
 bargain.  American Federation of Government Employees, Local 644,
 AFL-CIO and U.S. Department of Labor, Occupational Safety and Health
 Administration, 21 FLRA No. 84 (1986) (Proposals 6 and 11).
 
    Finally, with regard to the Agency's contentions regarding this
 proposal's impact on its budget, the Authority has held that in order to
 establish that a proposal directly interferes with management's right to
 determine its budget, it is necessary for an agency either to show that
 the proposal prescribes the programs and operations to be included in
 the agency's budget, or the amount to be allocated for them, or to make
 a substantial demonstration that the anticipated increase in costs is
 significant and unavoidable and is not offset by compensating benefits.
 American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
 (1980), enforced 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).  There is nothing in the record indicating
 that the proposal would either prescribe any program or operations or
 that it would increase costs significantly.  Consequently, Proposal 8 is
 within the duty to bargain.
 
                                IX.  Order
 
    The Agency shall upon request (or as otherwise agreed to by the
 parties) bargain concerning Proposals 2, 6, 7, and 8.  /3/ The Union's
 petition for review as to Proposals 3 and 4 is dismissed.
 
    Issued, Washington, D.C., May 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 did not file a reply brief in this case.
 
    (2) The latest regulation go