[ 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 governing federal employee parking is FPMR
Amendment D-84, 52 Fed. Reg. 11, 263 (1987) (to be codified at 41 CFR
Sections 101-20.104-101-20.104-4).
(3) In finding these proposals within the duty to bargain, we make no
judgment as to their merits.