39:0291(22)NG - - NFFE Local 2050 and EPA - - 1991 FLRAdec NG - - v39 p291



[ v39 p291 ]
39:0291(22)NG
The decision of the Authority follows:


39 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

(Agency)

0-NG-1841

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of four proposals submitted by the Union in connection with a relocation of employees in the Agency's Office of Radiation Programs. The Agency did not file a Statement of Position.

Proposal 4(d) would require that certain employees be relocated to space containing windows if renovations are not completed within a specified period of time; Proposal 13(g) would require automatic garage doors with an alarm system if there is access to a garage within 100 feet of the basement holding area; Proposal 14(a) would require that certain employees be provided with private offices; and Proposal 14(c) would require that offices have doors with combination locks. For the following reasons, we find that all four proposals are negotiable.

II. Proposal 4(d)

If renovations are not completed within a two month period, employees located in the lower concourse "holding area" shall be relocated to space containing windows and which meets the provisions of this agreement.

A. Positions of the Parties

As the Agency did not file a statement of position, its position is taken from the written allegation of nonnegotiability it furnished the Union. In that allegation, the Agency asserts as follows:

Management does not agree to this proposal as it requires a guarantee that additional space will be available, that the space will have windows for each bargaining unit employee, and such space will be available in two months. Further, management fails to see the "substantial impact" of not moving the people back until renovations are completed, whether its two months or more. In addition, [the Union] can not negotiate implementation dates.

Memorandum from Agency to Union at 3 (June 11, 1990) (hereinafter Memorandum to Union).

The Union states only that "[t]he negotiability appeal regarding (4)(d) is for the last sentence in management's response." Petition for Review, Attachment.

B. Analysis and Conclusions

Proposals which address reductions in office space, space allocation, and the arrangement of space concern conditions of employment and are negotiable unless an agency demonstrates that the proposals are inconsistent with law or regulation. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 413 (1990).

The Agency appears to assert that the proposal is nonnegotiable because the Union "can not negotiate implementation dates." Memorandum to Union at 3. That contention is misplaced. Proposal 4(d)'s reference to a 2-month period merely identifies when Proposal 4(d) is to take effect. It does not require renovations to be completed by any particular date and does not delay implementation of the renovations.

The parties bear the burden of creating a record upon which the Authority can make a decision. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE Local 1167 v. FLRA), aff'g sub nom. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet its burden acts at its peril. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Pay Center Locals, Local 1760, 36 FLRA 466, 475 (1990) (SSA).

The Agency makes no claim that this proposal directly interferes with a management right under section 7106(a) of the Statute, or is otherwise inconsistent with law or regulation. Because the Agency has not established that Proposal 4(d) is nonnegotiable, and no basis for finding the proposal nonnegotiable is apparent to us, we conclude that the proposal is within the duty to bargain.

III. Proposals 13(g) and 14(c)

Proposal 13(g)

If there is access to a garage within 100 feet of the basement holding area, the Agency shall provide doors to the garage which close automatically and provide an alarm system which will go off if the doors remain open longer than three minutes.

Proposal 14(c)

Each office shall have a door with a combination lock.

A. Positions of the Parties

The Agency contends that Proposal 13(g) is nonnegotiable because "it interferes with management's right to determine the security practices of the Agency." Memorandum to Union at 11. The Agency asserts that Proposal 14(c) is nonnegotiable because it "interferes with management's right to decide security practices." Id. at 12. According to the Agency, "[m]anagement will make the determination as to what offices require security and which offices do not." Id. In its petition for review, the Union failed to provide a statement of its position with respect to these proposals.

B. Analysis and Conclusions

Internal security practices include those policies and actions that are part of an agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 713 (1990). The Agency asserts that Proposals 13(g) and 14(c) interfere with its right to determine internal security practices. The Agency has not, however, asserted or demonstrated that either automatic garage doors with an alarm system or office doors with combination locks are part of, or otherwise inconsistent with, its plan for internal security. See NFFE Local 1167 v. FLRA, 681 F.2d at 891. In fact, as noted previously, the Agency did not file a statement of position in this case and did not, in its allegation of nonnegotiablity, elaborate in any way on its assertion that the proposals are nonnegotiable.

The Agency has not demonstrated, that these proposals directly interfere with its right to determine its internal security practices. Accordingly, we find that the proposals do not directly interfere with that right. As there is no other asserted basis for finding the proposals nonnegotiable, and no such basis is apparent to us, we conclude that the proposals are within the duty to bargain.

IV. Proposal 14(a)

All employees GS-12 and above and all Commissioned Officers 0-4 and above shall have offices and shall not be required to share an office.

A. Positions of the Parties

The Agency contends that Proposal 14(a) is nonnegotiable because "it deals with the assignment of work and applies to employees who are excluded from coverage under the [Union's] Collective Bargaining Agreement." Memorandum to Union at 12. The Union states that its petition as to this proposal "is for management's assertion that the proposal 'deals with the assignment of work.'" Petition for Review at 1.

B. Analysis and Conclusions

Proposal 14(a) would require the Agency to provide private offices to all employees "GS-12 and above" as well as "Commissioned Officers 0-4 and above." Although the Agency asserted that the proposal was nonnegotiable both because it applied to employees who were not covered by the parties' collective bargaining agreement and because it "deals with the assignment of work," the Union's petition for review relates only to the allegation regarding the assignment of work. That is, the Union does not dispute the Agency's allegation that the proposal is nonnegotiable because it applies to nonunit employees.

The "location in which employees perform their duties, as well as other aspects of employees' office environments" are "matters at the very heart of the traditional meaning of 'conditions of employment.'" U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 668 (1990) (quoting Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983)). Moreover, provided a proposal vitally affects the working conditions of unit employees, the proposal's effect on nonunit employees is not a factor in determining whether a proposal concerns conditions of employment. See, for example, International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA No. 115, slip op. at 4 (1991) (Naval Aviation Depot) (citing American Federation of Government Employees, Local 32, AFL-CIO, and Office of Personnel Management, 33 FLRA 335 (1988), enf'd sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990)).

It is not clear from the record before us whether the Agency's allegation regarding nonunit employees encompassed the entire proposal or only a portion of it. We note, in this regard, that the Agency did not state that the proposal applied solely to nonunit employees. We note also that the Union represents a bargaining unit of all professional employees at the Agency's headquarters. U.S. Office of Personnel Management, Union Recognition in the Federal Government at 427 (January 1989). It is reasonable to assume, therefore, and we assume for the purposes of this decision, that at least some of the employees referenced in Proposal 14(a) are unit employees.

Moreover, as the Union does not contest the Agency's allegation regarding nonunit employees, it appears that the Union effectively has amended its proposal so as to require the Agency to provide private offices only to those employees referenced in the proposal who are in the bargaining unit. Accordingly, we address here only the issue of whether the proposal, as so construed, directly interferes with the Agency's right to assign work and, in so doing, it is unnecessary to apply the analytical framework set forth in Naval Aviation Depot.

Proposals granting employees private offices are negotiable. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658, 659-61 (1986). As discussed in conjunction with Proposal 4(d), proposals addressing reductions in office space, space allocation, and the arrangement of space concern conditions of employment and are negotiable unless an agency demonstrates that the proposals are inconsistent with law or regulation.

We reject, in this regard, the Agency's assertion that Proposal 14(a) "is non-negotiable as it deals with the assignment of work . . . ." Memorandum to Union at 12. The Agency has not demonstrated, and there is otherwise no indication in the record, that the assignment of private offices to unit employees directly interferes with the assignment of work. See NFFE Local 1167 v. FLRA, 681 F.2d at 891 (the parties bear the burden of creating a record sufficient for the Authority to resolve a negotiability dispute). Therefore, we find that Proposal 14(a) does not directly interfere with management's right to assign work and conclude, in the absence of any other asserted or apparent basis for finding the proposal nonnegotiable, that it is within the duty to bargain. See, for example, National Treasury Employees Union and Department of Health and Human Services, Family Support Administration, 28 FLRA 1108, 1110-1111 (1987).

V. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain on Proposals 4(