39:0396(29)NG - - AFGE, National Council of HUD Locals and HUD, Washington, DC - - 1991 FLRAdec NG - - v39 p396



[ v39 p396 ]
39:0396(29)NG
The decision of the Authority follows:


39 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF HUD LOCALS

(Union)

and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

WASHINGTON, D.C.

(Agency)

0-NG-1818

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 7, 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 appeal concerns the negotiability of three provisions of a collective bargaining agreement which were disapproved by the Secretary of Housing and Urban Development under section 7114(c) of the Statute.(1)

Provision 1 provides that, except for certain specified offices, including the Office of the Inspector General, the competitive area for purposes of reductions-in-force will be the local commuting area. The disputed portion of Provision 2 states that the parties agree "that no discrimination will be tolerated on the basis of sexual preference and/or orientation." The disputed portion of Provision 3 provides that family leave "may be granted" in order "to aid, assist, or care for . . . any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."

For the following reasons, we find that all three provisions are negotiable.

II. Provision 1

Article 15, Section 15.06

Competitive Area. The competitive area for offices will be the local commuting area except for those identified below:

1. -- Office of the Secretary (includes Office of Legislation and Congressional Relations (LCR), and Public Affairs)

-- Office of Community Planning and Development (CPD)

-- Office of Housing

-- Office of Policy Development and Research (PD&R)

-- Government National Mortgage Association (GNMA)

-- Office of Fair Housing and Equal Opportunity (FHEO)

-- Office of General Counsel (OGC)

-- Office of Administration

-- Office of Inspector General (OIG)

-- Office of Public and Indian Housing (PIH)

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed portion of the provision "prescribes a competitive area for employees in the Office of the Inspector General (OIG)." Agency's Position at 2-3. The Agency argues that the provision is inconsistent with section 7112(b)(7) of the Statute, "which excludes employees with investigative and audit functions such as OIG employees from any bargaining unit." Id.

The Union asserts that the provision "addresses the narrow subject of competitive areas and does not affect the broader issue of which positions" are included in its unit of exclusive recognition. Reply Brief at 4.

B. Analysis and Conclusion

The Agency objects to Provision 1 solely on the basis that it conflicts with section 7112(b)(7) of the Statute. That section provides, in relevant part, that a bargaining unit may not be determined to be "appropriate" if it includes "any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency[.]"

We reject the Agency's argument. Provision 1 does not, as plainly worded or as interpreted by the Union, determine the scope of or otherwise affect in any way the Union's unit of exclusive recognition. The sole effect of Provision 1 is to establish, for reduction-in-force purposes, competitive areas for offices within the Agency other than those specifically excluded. There is, therefore, no basis on which to conclude that the disputed portion of Provision 1 conflicts with section 7112(b)(7) of the Statute.

The Agency does not assert that the provision is nonnegotiable on any other basis, and no other such basis is apparent to us. Accordingly, Provision 1 is negotiable. Compare American Federation of Government Employees, Council of Marine Corps Local (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1030-33 (1990) petition for review dismissed mem. sub nom. Department of the Navy, United States Marine Corps v. FLRA, No. 90-1334 (D.C. Cir. Aug. 27, 1990) (Authority rejected agency assertion that a proposal was nonnegotiable because, by prescribing the competitive area for unit employees, it affected some nonunit employees).

III. Provision 2

Article 19, Section 19.01

Policy. Management and the Union agree that pursuant to Federal statutes and EEOC regulations in all matters concerning employment, no discrimination shall be tolerated on the basis of age, sex, race, religion, qualified disabling condition, color, national origin, marital status or political affiliation in any matter relating to employment. Management will provide affirmative action programs where there is a manifested imbalance or conspicuous absence in protected EEO groups and promote full realization of equal opportunity through a positive and continuing effort. Such efforts shall include the eradication of offensive remarks in the workplace relating to age, sex, race, religion, qualified disabling condition, color, and/or national origin.

Employees who allege discrimination or anyone who participates in the presentation of such complaints, such as the EEO Counselor, will be free from restraint, interference, coercion, discrimination or reprisal.

Although not covered by Federal statute or EEOC regulation, Management and Union agree that no discrimination will be tolerated on the basis of sexual preference and/or orientation.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that Federal law does not prohibit discrimination on the basis of sexual orientation or preference. The Agency argues:

Accordingly, since Congress has legislated to protect employees from discrimination on . . . wide-ranging and specific bases . . . , and neither Congress nor the courts have extended the same protection to individuals for their "sexual preference and/or orientation," [Provision 2] is inconsistent with existing federal law . . . .

Statement of Position at 4-5.

The Union asserts that the disputed portion of Provision 2 constitutes only a statement of policy. The Union asserts that the provision "neither conflicts with the [F]ederal EEO statutory scheme or purports to be a part of it." Reply Brief at 8. The Union further asserts that "the parties have expressly disavowed any interpretation that the disputed sentence would or could extend statutory or regulatory anti-discrimination coverage to sexual preference." Id.

B. Analysis and Conclusion

As relevant here, section 7117(a)(1) of the Statute provides that the duty to bargain does not extend to proposals that are "inconsistent" with Federal law. The Agency has not established such an inconsistency here and none is apparent to us.

The essence of the Agency's argument is that the absence of a statutory requirement that the Agency refrain from discrimination on the basis of sexual preference or orientation constitutes a prohibition on an agreement to refrain from such discrimination. This argument cannot be sustained. Many matters are not required by law. If an agency were required to bargain only over matters that were already required by law, the duty to bargain would be meaningless. Moreover, as noted previously, the Statute requires bargaining over proposals that are not inconsistent with law. Nothing in Federal law requires an agency to discriminate on the basis of sexual preference or orientation. Accordingly, an agreement to refrain from such discrimination is not inconsistent with law.

The Agency has failed to demonstrate that Provision 2 is inconsistent with the Statute, or with any other law, rule, or regulation. Accordingly, Provision 2 is within the duty to bargain.

IV. Provision 3

Article 24, Section 24.11

Familial Leave. Management recognizes that employees may need leave to aid, assist, or care for family members, as a result of an incapacitation. Family member means spouse or spouse's parents; children; including adopted children and their spouses; parents; brothers and sisters, and their spouses; and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. In such instances, Management may grant annual leave, or if annual leave is exhausted, advance annual leave or leave without pay if workload permits.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed portion of the provision is inconsistent with Federal law because "the clause has been widely viewed . . . as extending domestic partnership benefits to Gay and Lesbian employees--a position which has not been taken by the Office of Personnel Management, the only agency with the authority to issue directives that deal with such government-wide issues." Statement of Position at 5 (citation omitted).

The Union asserts that nothing in the provision requires the Agency to grant annual leave or leave without pay. The Union also asserts that 5 C.F.R. Part 630 "makes no mention of the purposes for which annual leave may be requested and used." Reply Brief at 16. Therefore, the Union contends that "an employee may use annual leave for any lawful purpose, including care for any incapacitated individual. . . ." Id.

B. Analysis and Conclusion

The Agency cites no law or regulation with which the provision is inconsistent, and no such inconsistency is apparent to us. We note, in this regard, that contrary to the Agency's assertion, the Office of Personnel Management has, in the contexts of funeral leave and the voluntary leave transfer program, specifically defined "family member" in the same way as proposed by the Union. See 5 C.F.R. ºº 630.803(d)(5) and 630.902 (1990). Moreover, as plainly worded, the provision provides only that management recognizes that employees may "need" annual leave or leave without pay in certain circumstances and that the Agency "may" grant such leave. Compare American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 250-53 (1990) (proposal requiring the agency to grant leave requests in certain circumstances held to directly