28:0738(92)NG - NTEU, CHAPTER 207 VS FDIC



[ v28 p738 ]
28:0738(92)NG
The decision of the Authority follows:


28 FLRA NO. 92



NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 207

                     Union

      and

FEDERAL DEPOSIT INSURANCE
CORPORATION, WASHINGTON, D.C.

                     Agency

Case No. 0-NG-1293

DECISION AND ORDER ON NEGOTIABILITY ISSUES 1

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(B) of the Federal Service Labor - Management Relations Statute (the Statute). The appeal concerns the negotiability of a single Union proposal, which we find is within the duty to bargain.

II. Proposal

All benefit systems, e.g. dental care, 401(k), etc. will be made a part of this contract. No new system will be created without notice to the union and an opportunity to negotiate.

III. Positions of the Parties

The Agency asserts that it is not possible to determine the aspects of the Agency's employee benefit programs which the Union intends for negotiations under this proposal. On this ground, the Agency argues that the Union's petition should be dismissed because the proposal is not sufficiently specific to enable the Authority to provide the parties with a negotiability ruling. 

The Agency also argues that the proposal is outside its duty to bargain because: (1) the benefits to which the proposal relates are merely incidents of employment rather than conditions of employment within the meaning of section 7103(a)(14) of the Statute; (2) the proposal would require negotiations on benefits which are controlled by Agency regulations for which a compelling need exists within the meaning of section 7117(a)(2) of the Statute; (3) the negotiations contemplated by the proposal would conflict with the Agency's right to determine its budget under section 7106(a)(1) of the Statute; and (4) the proposal concerns matters such as salary deferral 401(k) plans and life insurance plans which cannot be negotiated because these matters are controlled by Federal law.

The Union states that the intent of the proposal is to require the Agency to provide the Union with advance notice and an opportunity to negotiate over changes in employee benefits which the Agency initiates during the term of the parties' agreement. Union petition for review; Union response at 4. In this regard, it argues that the proposal is sufficiently specific to enable the Authority to provide the parties with a negotiability ruling.

The Union asserts that the proposal covers benefits which meet the definition of conditions of employment in section 7103(a)(14) of the Statute--that is, "personnel policies, practices and matters . . . affecting working conditions"--and it is not intended to apply to benefits which are exempted from section 7103(a)(14) because they are specifically provided for by Federal statute. In the latter regard, the Union states this proposal concerns benefits which the Agency extends to employees at its discretion. Union response at 4-5.

Finally, the Union argues that the Agency's other objections to the proposal are speculative at this time because they do not apply to this proposal, but to what the Union may propose for negotiations in the future.

IV. Analysis and Conclusions

A. The meaning of the proposal

The proposal provides that existing Agency benefit systems will be made a part of the parties' agreement and that no new benefit system will be created without notice to the Union and an opportunity to negotiate. As explained by the Union, the proposal would require the Agency to provide the Union with an opportunity to negotiate over changes in  employee benefits, including money-related benefits, which the Agency initiates at its discretion in the future.

Further, stressing that the proposal is concerned with the Union's opportunity to negotiate such matters, the Union states that this proposal would only require negotiations which are consistent with applicable laws and regulations. Because it is not inconsistent with the proposal's wording, we adopt the union's explanation of the proposal for the purposes of this decision.

B. The Proposal is sufficiently specific

Based on the language of this proposal and its meaning, as discussed above, we find that the proposal is sufficiently specific to enable us to provide the parties with a negotiability ruling.

C. The Proposal is within the duty to bargain

The Authority has he expressly held and recently reaffirmed affirmed that nothing in the Statute, or its legislative history, bars negotiation of proposals concerning employee compensation insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, government-wide rule or regulation, or an agency regulation for which a compelling need exists. American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986). This proposal is negotiable in this regard because (1) it concerns employee compensation, (2) it covers those benefits which the Agency provides unit employees at its discretion, rather than benefits which are specifically provided by law, and (3) the proposal is not intended to require negotiations over matters which are inconsistent with applicable law and regulations.

The Agency's other objections to this proposal, concerning whether the Union may seek bargaining on nonnegotiable matters at a later date, are misplaced. Like Proposal 11 in American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Local 3804), implementation of this proposal does not require the Agency to waive its right to object to future Union proposals on the grounds that the proposals are inconsistent with applicable laws or regulations, or require the Agency to negotiate over matters in the future which are outside its duty to bargain.  This proposal would merely establish that the Agency shall have contractual obligations--analogous to the Agency's statutory obligations--to provide the Union with an opportunity to negotiate concerning mid-contract changes in conditions of employment. Local 3804, 21 FLRA No. 104 at n.25.

The Agency will have the opportunity to object to proposals submitted for negotiation on specific benefit matters, on the above-discussed grounds, if it plans changes in employee benefits in the future and the Union requests bargaining. At this time, the Agency's objections amount to speculation which does not show that this proposal is nonnegotiable. American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 680 n.16 (1983).

V. Order

Upon request or as otherwise agreed to by the parties, the Agency must bargain concerning the Union's Proposal. 2

Issued, Washington. D.C., August 27, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Chairman Calhoun

In my view, the Union has failed to set forth sufficient and specific information to enable the Authority to make a negotiability ruling concerning the proposal in this case. I believe, therefore, that the petition for review should be dismissed on the same basis as that concerning Proposal 1 in Fort Knox Teachers Association and Fort K