44:1405(116)NG - - AFGE Local 1923 and HHS, Health Care Financing Adm., Baltimore, MD - - 1992 FLRAdec NG - - v44 p1405
[ v44 p1405 ]
44:1405(116)NG
The decision of the Authority follows:
44 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1923
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH CARE FINANCING ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)
0-NG-1710
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of 32 proposals.(1)
Proposal 1, which requires the Agency to provide equal employment opportunities and treatment to all prospective employees, is negotiable because it vitally affects unit employees' working conditions and is not inconsistent with applicable law and regulations.
Proposal 2 provides that managers, supervisors, Equal Employment Opportunity (EEO) Officers, and personnelists will be held accountable for successful implementation of the Agency's affirmative employment program (AEP). The portions of Proposal 2 relating to managers, supervisors, and personnelists are nonnegotiable because they do not concern the conditions of employment of bargaining unit employees. The portion of Proposal 2 relating to EEO officers is dismissed because the record is insufficient for us to make a negotiability determination.
Proposals 3 and 4, which require the Agency to identify and describe the duties of officials responsible for the implementation of the EEO and AEP programs, concern the conditions of employment of bargaining unit employees and are negotiable.
Proposal 5 requires the Personnel Director to certify in writing that the qualifications of officials responsible for implementing the EEO program have been reviewed and meet appropriate standards. Proposal 5 is nonnegotiable because it directly interferes with management's right to assign work.
Proposal 6 provides that the Agency shall conduct a training session on sexual harassment each year for Union representatives and EEO counselors. The portion of Proposal 6 requiring the Agency to conduct a training session for Union representatives is negotiable because it does not directly interfere with the Agency's right to assign work. The portion of Proposal 6 requiring the Agency to conduct a training session for EEO counselors is nonnegotiable because it directly interferes with the Agency's right to assign work.
Proposals 7, 8, and 16 require the Agency, or the Agency and the Union jointly, to conduct studies and prepare reports concerning the operation and implementation of the Agency's AEP. Proposal 9 requires the Agency to: (1) meet with the Union semiannually to review and discuss the implementation of the Agency's affirmative action plan; and (2) provide knowledgeable personnel to facilitate the discussions. Proposals 7, 8, 9, and 16 constitute negotiable procedures.
Proposal 10, which requires the Agency and the Union to review all requests for personnel action targeted by the Agency's AEP, is a negotiable procedure under section 7106(b)(2) of the Statute.
Proposal 12 requires: (1) a joint Agency and Union analysis of the composition of the workforce and an evaluation of the personnel system; (2) an Agency study of how its selection procedures are implemented; and (3) the Agency to remedy barriers to affirmative employment by modifying or eliminating qualification procedures. Proposal 12 constitutes a negotiable procedure.
Proposal 13 requires the Agency to use "tools," such as bridge positions, to achieve a fair distribution of women and minorities in all job series and at all grade levels. We find that Proposal 13 is negotiable because it does not directly interfere with management's rights to determine its organization, under section 7106(a)(1) of the Statute, or to determine the types of positions assigned to an organizational subdivision, under section 7106(b)(1).
Proposal 15, which provides for the continued development of transitional or bridge positions, is negotiable because it does not excessively interfere with the Agency's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
Proposal 17 requires the Agency to: (1) increase the number of employees in the administrative series from a specific underrepresented group by five per year; and (2) increase the number of employees in the clerical series from a specific underrepresented group by three per year. Proposal 17 is nonnegotiable because it excessively interferes with the Agency's rights to hire, assign, and select employees.
Proposal 18 requires the Agency to fill 13 General Schedule (GS) 13 to 15 positions annually with internal recruits from a specific group of underrepresented employees. Proposal 28 requires that: (1) whenever possible, 50 percent of all vacancies will be filled from internal pools of individuals from underrepresented groups; and (2) 65 positions will be filled with 60 percent of the selectees from underrepresented groups. Proposals 18 and 28 are nonnegotiable because they excessively interfere with the Agency's rights to hire and assign employees and to make selections from any appropriate source.
Proposal 19 consists of 7 parts. Part 1, which consists of statements of intent, does not directly interfere with management's rights and is negotiable. Parts 2 and 3 are not in dispute. Part 4, which requires the Agency to review technical positions, is negotiable because it does not directly interfere with the Agency's rights to determine its organization or assign work. Part 5, which requires the Agency to waive certain qualification requirements "where appropriate" and to satisfy the requirements with training, is negotiable. Part 6, which requires the Agency to fill vacancies in GS-5 to 7 and GS-9 to 11 administrative and professional positions from certain existing positions, is nonnegotiable because it excessively interferes with management's right to make selections from any appropriate source. Part 7, which requires that certain potential applicants be recruited through the Agency's continuing education program, is not sufficiently specific and delimited to permit a determination as to its negotiability.
Proposal 20 provides that the Agency will "fully utilize" internal applicant pools as defined by Proposals 21 through 27. Proposal 20 is nonnegotiable because it provides that the Agency will take action required by other nonnegotiable proposals.
Proposal 21, which requires the Agency to advise its offices that professional and administrative entry-level positions are bridge positions, is nonnegotiable because it excessively interferes with the Agency's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
Proposal 22 requires the Agency to provide training to help certain employees reach the journeyman level. Proposal 22 is negotiable because it does not excessively interfere with management's right to assign work.
Proposal 23 provides that the Agency will utilize internal applicants at appropriate grade levels rather than external recruitment at higher grade levels. Proposal 23 is nonnegotiable because it excessively interferes with management's right to select from any appropriate source.
Proposal 24 requires the Agency to return selectees from internal pools who fail to reach satisfactory performance to their prior position or to a comparable position. Proposal 24 is nonnegotiable because it excessively interferes with the Agency's right to assign employees to positions.
Proposal 25, which requires the Agency to give first preference for certain positions to individuals from identified pools, does not directly interfere with the Agency's right to select from any appropriate source and is a negotiable procedure.
Proposal 26, which provides that the Agency will identify each bridge position as a bridge position when the position is posted, is a negotiable procedure.
Proposal 27 requires the Agency to assure that bridge positions will be used to fill certain positions. Proposal 27 is negotiable because it does not excessively interfere with management's rights to determine its organization and to determine the types of positions assigned to an organizational subdivision.
The first part of Proposal 29, which requires the Union and the Agency to agree to waive contractual and other obligations to facilitate the inclusion of minorities on Best Qualified Lists, is negotiable only as it applies to a waiver of contractual obligations. The second part of Proposal 29 requires that the Agency not exclude certain applicants from Best Qualified Lists on the basis of appraisal and award points. The second part of Proposal 29 is negotiable because it does not excessively interfere with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute.
Proposal 30, which establishes various procedures for filing an EEO complaint, does not directly interfere with management's rights and is negotiable.
Proposal 31 requires management to: (1) give priority consideration to all potential qualified internal candidates for certain positions; (2) waive qualification requirements for certain positions for individuals from certain underrepresented groups; and (3) establish a targeted percentage of certain underrepresented groups for projected outside hires. The portions of Proposal 31 requiring the Agency to give priority consideration are dismissed because the record is insufficient for us to determine to which employees those portions apply. The portions of Proposal 31 requiring the Agency to establish a targeted percentage of certain underrepresented groups for projected outside hires are negotiable procedures to the extent that the positions involved are unit positions. The portions of Proposal 31 requiring the Agency to waive qualification requirements are nonnegotiable because they excessively interfere with management's rights to assign employees and select employees for appointment.
Proposal 32 requires the Agency to: (1) eliminate undue delay in considering the requests of employees with handicapping conditions for reasonable accommodations; and (2) consider requests for reasonable accommodations as exceptions to general budgetary constraints. Proposal 32 does not directly interfere with management's right to determine its budget and is negotiable.
Proposal 33 states that leave without pay shall be granted for the illness or disability of employees with handicapping conditions. Proposal 33 is nonnegotiable because it excessively interferes with management's right to assign work.
Proposal 34 requires the Agency to provide the following reasonable accommodations to qualified employees with handicapping conditions during training: (1) modified training and reference materials; (2) a qualified interpreter for hearing-impaired trainees; and (3) a mentor to provide individualized training. Proposal 34 is negotiable because it does not excessively interfere with management's rights to hire and assign employees.
II. Background
The parties negotiated a Multi-Year Affirmative Action Plan for Fiscal Year (FY) 1982 through FY 1986. By letter dated May 1, 1986, the Union requested the Agency to provide the Union with a copy of its procedures for developing an affirmative action plan (AAP) beginning at the start of FY 1987 and "declared its intention to bargain [over] the AAP." Union's Response at 3. Pursuant to a notice from the Equal Employment Opportunity Commission (EEOC) that the EEOC was extending its instructions for agencies' affirmative employment plans for 1 year pending the development of new directives for FY 1988 through FY 1992, the Agency unilaterally extended the parties' AAP for 1 year.
After the Agency unilaterally extended the parties' AAP for 1 year, the Union filed a grievance over the Agency's failure to bargain before extending the parties' AAP. Ultimately, the matter was submitted to arbitration, where the Arbitrator framed the issue as:
"[W]hether the Agency failed to perform its contractual duty to bargain when it interpreted the EEOC's direction to extend the [EEOC's] Instructions for one year as a requirement that its AAP be extended without allowing for change or negotiation."
Id. at 4 (quoting Arbitrator's Award at 7). In an award dated August 25, 1987, the Arbitrator sustained the grievance and directed the Agency to negotiate over a new AAP. No exceptions were filed to the award. On October 6, 1987, the EEOC issued the Equal Employment Opportunity Management Directive 714 (MD-714), entitled "Instructions for the Development and Submission of Federal Affirmative Employment Multi-Year Program Plans, Annual Accomplishment Reports, and Annual Plan Updates for FY 1988 through FY 1992." See Union's Response, Appendix B. On April 15, 1988, the parties executed an agreement containing, in part, the procedures for bargaining over an affirmative employment program (AEP) for FY 1988 through FY 1992.
The Agency refused to negotiate over the AEP, and the Union filed an unfair labor practice charge. The agreement settling the unfair labor practice case provided that the Agency would negotiate over the AEP for FY 1988 through FY 1992. On October 4, 1988, the Agency presented the Union with a copy of a revised AEP. Subsequently, the parties held several negotiating sessions which "necessitated the assistance of the Federal Mediation and Conciliation Service. Following impasse, a Request for Assistance was filed by [the Union] with the Federal Service Impasses Panel [the Panel]." Id. at 7. On April 17, 1989, the Panel declined without prejudice to assert jurisdiction over the case "because of the presence of questions concerning the obligation to bargain which were, in the Panel's view, unresolvable using the Panel's authority." Id. Subsequently, on May 11, 1989, the Union requested from the Agency a written allegation of nonnegotiability concerning the proposals at issue in this case. The Union was served with the allegation on May 19, 1989, and filed its petition for review with the Authority on May 25, 1989.
III. Preliminary Matters
A. Timeliness
The Agency requests that the Authority dismiss the Union's petition as untimely. The Agency acknowledges that "under the Authority's current decisions and regulations, the Union's petition would be considered timely[.]" Agency's Statement of Position at 3. However, the Agency requests that the Authority "review its determination that unions may ignore unsolicited [a]gency allegations of nonnegotiability." Id. at 4.
The Agency contends that the Union presented proposals at the bargaining table identical to the proposals in this case and that the Agency repeatedly offered to present a written allegation that the proposals were nonnegotiable, but "the Union rejected the offer." Id. at 5. The Agency argues that "it is not reasonable to handcuff an [a]gency which has genuine concerns regarding the negotiability of certain [u]nion proposals by requiring it to continually be faced with those same proposals . . . until and unless the [u]nion decides to pursue the matter." Id. at 6. According to the Agency, the "date on which the Union received its service copy of the Agency's statement to the Panel, containing, in detail, the Agency's allegations of nonnegotiability, should be considered 'the date on which the [A]gency first' made its allegations of nonnegotiability" within the meaning of section 7117(c)(2) of the Statute. Id. (emphasis in original). As the Union received its service copy of the Agency's statement to the Panel on or about March 10, 1989, the Agency argues that the Union's petition should have been filed within 15 days of March 10, 1989. As the Union's petition was not filed until May 25, 1989, the Agency maintains that the petition should be dismissed as untimely.
The Union argues that the Authority should continue to follow the rule that "the timing of negotiability appeals is predicated on the solicitation of allegations by a labor organization." Union's Response at 8-9.
Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of a negotiability issue is 15 days after the union has been served with the requested allegation of nonnegotiability from the agency. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic Center, Washington, D.C., 41 FLRA 265 (1991). A union may ignore unsolicited allegations of nonnegotiability. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723 (1990).
In this case, the Union requested the Agency's allegation of nonnegotiability on May 11, 1989, and was served with the allegation on May 19, 1989. To be timely, the Union's petition for review must have been filed by June 12, 1989. See 5 C.F.R. §§ 2424.3, 2429.21, and 2429.22. As the Union's petition for review was filed on May 25, 1989, we find that the Union's petition for review is timely.
We note the Agency's request that the Authority review its interpretation of section 7117(c)(2) of the Statute. We decline to change the Authority's longstanding interpretation. Accordingly, for the reasons noted above, we conclude that the Union's petition for review is timely.
B. Appropriate Arrangements
The Union argues that to the extent that any of the proposals "might otherwise be construed to interfere . . . with [the] exercise of a management right, it is an appropriate arrangement . . . ." Union's Response at 17. The Union states that minorities and women are underrepresented in specific grades and occupations within the Agency. According to the Union, underrepresentation is "a conclusion drawn from comparing the actual extent of employment within [the Agency] as a whole, as well as in specific grades or occupations, to the distribution of minorities and women in the civilian workforce." Id. See also 5 U.S.C. § 7201. The Union asserts that "underrepresentation has become prevalent and permanent" due to the Agency's personnel actions and that the proposals are intended to alleviate such adverse effects of underrepresentation as barriers and conspicuous absences. Union's Response at 18. According to the Union, the proposals will "ameliorate the adverse effects in specified and limited ways, such as eliminating barriers, using innovative staffing techniques, and reviewing requests for personnel action[s]." Id.
The Agency filed a motion requesting that the Authority consider its supplemental submission on the issue of appropriate arrangements. According to the Agency, the Union "has only for the first time, in its 'Position' statement, raised arguments in support of an assertion that the proposals are 'appropriate arrangements'" under section 7106(b)(3) of the Statute. Agency's Supplemental Submission at 1. The Union opposes the Agency's motion because, according to the Union, there is no basis in the Authority's rules, regulations, or procedures to allow for the submission of such a response. As the Union raised arguments in support of its appropriate arrangements contention for the first time in its response to the Agency's statement of position, we will consider the Agency's supplemental submission addressing the Union's arguments. See 5 C.F.R. § 2424.8. See also National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711 n.1 (1990).
The Agency challenges the Union's assertion that underrepresentation constitutes an adverse effect within the meaning of section 7106(b)(3) of the Statute. The Agency argues that it "is difficult to determine the nature and extent of the 'adverse impact' that the Union claims." Agency's Supplemental Submission at 9. The Agency also argues that the Union has failed to identify the particular exercise of management's rights which produces the adverse effect and has not explained how the proposals offer solutions to the "real or anticipated problems that will arise." Id. at 8-9. As the Union has not shown that there is a direct link between the adverse impact and the exercise of a management right, the Agency contends that the proposals cannot be appropriate arrangements.
To the extent that the Union argues that employees are adversely affected by the Agency's failure to exercise its right to select those employees for positions, the Agency contends that the "notion of adverse impact . . . is not intended to" include such a situation. Id. at 9. According to the Agency, if the Union is alleging that the selection process is inequitable, "the appropriate forum for calling the Agency to task is not a negotiability appeal." Id.
The Agency further contends that the Union's proposals offer "no special benefits to non-minority employees comparable to those which it seeks for minority employees" and that, therefore, implementing the Union's proposals involving preferential treatment for minority employees "will have a significantly detrimental effect on employee morale." Id. at 10, 11. The Agency argues that the Union's proposals "set not 'objectives,' but requirements" and "send the message to any who are not members of the designated groups that they are not on an equal footing with their coworkers in terms of employment opportunities[.]" Id. at 4 (emphasis in original).
We will analyze the parties' arguments on appropriate arrangements in the context of the particular proposals before us. In determining whether a particular proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, we will apply the framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Specifically, to determine whether a proposal constitutes an appropriate arrangement, we will examine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights.
In determining whether a proposal is an arrangement for employees adversely affected by the exercise of management's rights, we will look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31. In deciding whether a proposal excessively interferes with the exercise of a management right, we will weigh the benefits conferred on employees by the proposal against the burden imposed on the exercise of management's rights.
IV. Proposal 1
Section 1 POLICY
(A) It is the policy of the Administration to provide equal employment opportunities and treatment for all current or prospective employees and to: prohibit discrimination because of race, color, religion, sex, national origin, mental or physical handicap, age, marital status, or political affiliation. Toward this end the Administration agrees to maintain a work environment that assures employees fair and impartial treatment in all employment actions with special consideration for the effect and not merely the intent of management decisions.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency argues that the "duty to bargain does not extend to conditions of employment of individuals other than those who meet the statutory definition of 'employee.'" Agency's Statement of Position at 11 (citing American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA 899, 907 (1985) (U.S. Army Adjutant General Publication Center)). As applicants or prospective employees do not meet the statutory definition of "employee," the Agency contends that it has no duty to bargain over Proposal 1.
2. Union
The Union argues that Proposal 1 is negotiable because it restates requirements imposed on the Agency by the EEOC. Specifically, the Union states that under MD-714, the requirement for equal employment opportunity applies to prospective employees because MD-714 covers all employment practices, including hiring. The Union also argues that to the extent that the proposal covers nonunit positions, "the AEP vitally affects working conditions of employees in the bargaining unit" and, therefore, is negotiable. Union's Response at 9.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 1 vitally affects the conditions of employment of bargaining unit employees and is negotiable.
During the pendency of this case, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point), where it examined the Authority's application of the vitally affects test.(2) The court approved the Authority's adoption of the private sector test but determined that the Authority had misapplied the test in certain circumstances. In the court's view, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440. The court added that the test "is not implicated, however, merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. (emphasis in original). The court recognized that most union bargaining demands would have some "extra-unit effects" on non-unit personnel but held that such effects would not alter an employer's duty to bargain over mandatory subjects of bargaining. Id. at n.6. The court found that "proposals that principally relate to the conditions of employment of bargaining unit personnel are within the traditional scope of mandatory bargaining." Id. at 1441. The vitally affects test is not relevant to such proposals.
In addressing the applicability of the vitally affects test, the court differentiated among four groups of nonunit personnel: employees not in any bargaining unit, non-employees, management personnel, and employees in other bargaining units. The court held that the vitally affects test does not apply in circumstances where a union seeks to regulate through collective bargaining the conditions of employment of employees in other bargaining units and of management personnel who are excluded by the Statute from bargaining units. Id. at 1441. With respect to employees not in any bargaining unit and non-employees, the court held that the vitally affects test applies when the interests of such individuals are "directly implicated" by a union proposal or when a proposal "purports to regulate the terms and conditions of employment" of such non-bargaining unit employees or non-employees. Id. In these circumstances, the proposal would fall outside the mandatory scope of bargaining absent a showing that the proposal vitally affects conditions of employment of bargaining unit employees.
As noted above, under the court's analysis in Cherry Point, proposals purporting to regulate the working conditions of non-employees are negotiable if the proposals vitally affect the conditions of employment of bargaining unit employees. The court's decision applies to Proposal 1 because Proposal 1 addresses outside applicants, who are non-employees. The Authority has not ruled on the negotiability of proposals affecting outside applicants or prospective employees under the vitally affects test. Compare National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1246 n.3 (1991), petition for review filed as to other matters sub nom. United States Department of Energy, Washington, D.C. v. FLRA, No. 91-1514 (D.C. Cir. Oct. 21, 1991) (where the Authority interpreted the term "employee applicants" used in drug testing provisions to mean applicants who are existing unit employees).
However, the National Labor Relations Board (NLRB or the Board) has examined whether matters relating to applicants vitally affected the terms and conditions of employment of unit employees under the standard articulated in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179 (1971). In Star Tribune, 295 NLRB 543 (1989), the Board held that the employer did not violate the National Labor Relations Act (the Act) when it refused to bargain over its drug and alcohol testing policy for applicants because the matter did not vitally affect the terms and conditions of employment of unit employees. The Board noted that although the employer's applicant drug and alcohol testing policy may affect the composition of the bargaining unit, that fact "does not, standing alone, support the conclusion that [the policy] vitally affects the terms and conditions of unit employees." Id. at 548 (emphasis in original). The Board concluded that "drug and alcohol testing of applicants for employment is not a mandatory subject of bargaining . . . ."
Id.
Notwithstanding that conclusion, however, the Board further found that the employer violated the Act by failing to provide the union with information on the applicants who participated in the drug testing program. The union had requested the information to determine whether the program had been applied to the applicants in a discriminatory manner. The Board stated that the "elimination of actual or suspected . . . discrimination is a mandatory subject of bargaining, and an employer's refusal to engage in bargaining over such elimination violates . . . the Act." Id. (footnote omitted). The Board distinguished its conclusion that the drug and alcohol testing of applicants does not vitally affect unit employees' terms and conditions of employment. The Board stated that:
one reason for finding that testing of applicants does not vitally affect unit employees' terms and conditions of employment is [that] a union's legitimate concerns about a safe and drug-free working environment can be effectively addressed in union proposals that seek physical examination, including drug testing, of newly hired employees at the very outset of their employment.
Id. at 549.
In distinguishing the union's concerns over the provision of information about applicants in order to eliminate discrimination and the union's concerns over the drug and alcohol testing of applicants, the Board found that, unlike the situation involving the drug and alcohol testing of applicants,
considerations of a union's concerns about eliminating . . . discrimination in the employment relationship cannot so easily exclude the hiring process. If an employer engages in discrimination at that stage, the discriminatee will never enter into the employment relationship, and will not become a member of the work force.
Id. at 549. Moreover, the Board noted that barring a union from investigating the hiring process "could bar it from effectively seeking elimination of discrimination in the employment relationship" because "discrimination in the hiring process is so intertwined with possible discrimination in the employment relationship[.]" Id. Accordingly, the Board found that the employer violated the Act by refusing to provide the union with information about applicants who participated in the drug testing program.
We note that, unlike this case, Star Tribune involved providing information to a union to determine whether the employer's drug and alcohol testing program had been applied to applicants in a discriminatory manner. Nevertheless, in distinguishing its finding that applicant testing is not a mandatory subject of bargaining from its finding on providing information on discrimination against applicants, the Board emphasized the difference between a union's concerns about discrimination against applicants and its concerns about drug and alcohol testing of applicants. While both matters involve the hiring process, the Board found that "considerations of a union's concerns about eliminating . . . discrimination in the employment relationship cannot so easily exclude the hiring process." Id. Citing Tanner Motor Livery, 148 NLRB 1402 (1964) (Tanner), enforcement denied on other grounds 419 F.2d 216 (9th Cir. 1969), the Board stated that it agreed with the conclusion in Tanner that "employee picketing to protest discriminatory hiring policies and practices is concerted activity protected by . . . the Act." Star Tribune, 295 NLRB at 549 n.20. However, the Board stated that it would reject "certain broad language [in Tanner] suggesting that in general an employer's hiring practices are a mandatory subject of bargaining." Id. The Board further noted that it would not follow previous Board cases relating to the provision of information to the extent that those cases can be read "to provide for furnishing information regarding hiring practices in all circumstances . . . ." Id.
As we noted previously, the elimination of actual or suspected discrimination is a mandatory subject of bargaining under the Act. See id. at 548. Nothing in the Statute warrants a different conclusion here. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 617 (1980), enforced 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) ("matters related to discrimination in employment . . . are within the scope of the duty to bargain under section 7117 of the Statute").
The first sentence of Proposal 1 states in part: "It is the policy of the Administration to provide equal employment opportunities and treatment for all current or prospective employees . . . ." When read in conjunction with the remainder of the first sentence of Proposal 1, it appears that the Union seeks to negotiate over not only equal employment opportunities, but also over the elimination or prohibition of discrimination in the workplace. We agree with the Board's conclusion in Star Tribune that discrimination in the hiring process is intertwined with possible discrimination in the employment relationship and that the Union's legitimate efforts, as the exclusive representative of unit employees, to seek to eliminate discrimination in the employment relationship "would be severely impeded . . . if it were required to wait until the hiring process is complete . . . ." Star Tribune, 295 NLRB at 549.
We note that Star Tribune involved the provision of information to the union concerning possible discrimination against applicants in the hiring process. Nevertheless, we find that similar concerns over eliminating discrimination in the hiring process are present in this case and, therefore, we extend the Board's reasoning to cover bargaining over the elimination of possible discriminatory treatment of applicants. As we have found that discrimination in the hiring process is intertwined with possible discrimination in the workplace, we conclude that unit employees have a significant and material interest in the elimination of employment discrimination in the hiring process. By requiring management to provide equal employment opportunities and treatment to prospective employees, Proposal 1 constitutes an attempt by the Union to seek the elimination of discrimination in the hiring process. As Proposal 1 relates to unit employees' significant and material interest in eliminating discrimination in the unit, we conclude that Proposal 1 vitally affects the conditions of employment of unit employees.
We note that this case is distinguishable from National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 745-47 (1991) (Proposal 4) (U.S. Department of the Navy, Newport). In U.S. Department of the Navy, Newport, one of the proposals stated that "all contractors coming onto [agency] grounds, who are performing work the same or similar to that which would be designated [for drug testing by the agency,]" are required to test their own employees as a condition of the contract. U.S. Department of the Navy, Newport, 42 FLRA at 743. We found that the proposal did not vitally affect bargaining unit employees' conditions of employment. In reaching this conclusion, we noted that the record did "not contain any information as to the nature or duration of contact between bargaining unit employees and . . . contract employees who perform the same or similar work[,]" and that the proposal had "at best, an indirect or incidental effect on unit employees' working conditions." Id. We also noted that the proposal could be read to apply to individuals who come onto the agency's premises, "regardless of whether they work at the [agency's] worksite or elsewhere." Id. at 747.
Our conclusion that the proposal in U.S. Department of the Navy, Newport did not vitally affect unit employees' conditions of employment is consistent with the Board's finding in Star Tribune that drug and alcohol testing of applicants for employment did not vitally affect unit employees' conditions of employment. Moreover, to the extent that the proposal in U.S. Department of the Navy, Newport required contractors to be tested regardless of whether they worked at the agency's worksite, our conclusion would also be consistent with the Board's finding that similar testing of applicants would "not vitally affect workplace safety" and would have a "speculative and insubstantial" impact on unit employees. Star Tribune, 295 NLRB at 548, 548 n.16.
Finally, the Agency's reliance on U.S. Army Adjutant General Publication Center is misplaced because that case was decided before the Authority adopted the private sector vitally affects test and did not analyze whether the proposal at issue vitally affected the working conditions of unit employees.
Accordingly, we find that Proposal 1 is negotiable.
V. Proposal 2
[Section 1](C)
The Administration shall hold managers, supervisors, EEO Officers, and personnelists accountable for successful implementation of the affirmative employment program.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is nonnegotiable because it does not concern matters which directly relate to the conditions of employment of bargaining unit employees. The Agency further contends that the proposal "would subject management's right to determine 'successful implementation' to arbitral review and place substantive requirements on management's right to take action to achieve this goal." Agency's Statement of Position at 12.
2. Union
The Union contends that the proposal restates the requirements of MD-714, paragraph 9.a.1. and 3. The Union also contends that to the extent that the proposal covers nonunit positions, "the AEP vitally affects working conditions of employees in the bargaining unit" and, therefore, is negotiable. Union's Response at 9.
B. Analysis and Conclusions
For the following reasons, we find that, as applied to managers, supervisors, and personnelists, Proposal 2 does not concern the conditions of employment of bargaining unit employees and, therefore, is nonnegotiable. We also find that the record is insufficient for us to determine the negotiability of the portion of Proposal 2 applying to EEO officers. Accordingly, we will dismiss that portion of the proposal.
As we noted with respect to Proposal 1, in Cherry Point the U.S. Court of Appeals for the District of Columbia Circuit examined the Authority's application of the vitally affects test. As relevant here, the court held that the vitally affects test does not apply in circumstances where a union seeks to regulate through collective bargaining the conditions of employment of management personnel who are excluded by the Statute from bargaining units. Cherry Point, 952 F.2d at 1441. The court noted that pursuant to section 7112 of the Statute, managers "are legally disabled from belonging to any bargaining unit[.]" Id. at 1442. Therefore, the court stated that permitting a union to seek to negotiate to regulate the conditions of employment of management personnel would "violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only." Id. (emphasis in original), citing National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292 (1980) (where the Authority held nonnegotiable a proposal specifying procedures for filling management and supervisory positions).
Proposal 2 requires, in part, that the Agency hold managers and supervisors accountable for the successful implementation of the AEP. By requiring the Agency to hold managers and supervisors accountable for the successful implementation of the AEP, Proposal 2 seeks to regulate the conditions of employment of management personnel who are excluded by the Statute from bargaining units. Accordingly, based on the court's reasoning in Cherry Point, we are constrained to conclude that the portion of Proposal 2 requiring the Agency to hold managers and supervisors accountable for the successful implementation of the AEP does not concern the conditions of employment of bargaining unit employees and is nonnegotiable.
Proposal 2 also requires the Agency to hold personnelists accountable for the successful implementation of the AEP. An employee who engages in personnel work in other than a purely clerical capacity, such as a "personnelist," is excluded by law from bargaining units under section 7112 of the Statute. Accordingly, consistent with the court's reasoning in Cherry Point, we conclude that this portion of Proposal 2 does not concern the conditions of employment of bargaining unit employees and, therefore, is nonnegotiable.
Finally, Proposal 2 also requires the Agency to hold EEO officers accountable for the successful implementation of the AEP. EEO officers may be either unit employees or management officials. We are unable to determine from the record whether the EEO officers referenced in Proposal 2 are unit employees or management officials. The parties bear the burden of creating a record on which we can base a negotiability determination. American Federation of Government Employees, Local 2031 and U.S. Department of Veterans Affairs Medical Center, Cincinnati, Ohio, 39 FLRA 1155, 1161 (1991) (Department of Veterans Affairs Medical Center). Because the record here does not contain information sufficient for us to determine whether the EEO officers referenced in Proposal 2 are unit employees or management officials, we are unable to decide, under Cherry Point, whether the proposal would determine the conditions of employment of management officials and, thus, be nonnegotiable. Accordingly, we will dismiss the petition for review as to this portion of Proposal 2.
Having found that the portions of Proposal 2 applying to managers, supervisors, and personnelists do not concern the conditions of employment of bargaining unit employees, we need not address the Agency's argument that the proposal places substantive requirements on management's right to take action to successfully implement the AEP or the Union's argument that the proposal is negotiable because it restates certain requirements of MD-714.
VI. Proposal 3
Section 2 DELEGATION OF AUTHORITY
(A) The Administration shall identify all EEO/AEP Officials and provide a clear delineation of their specific duties and responsibilities (see attachment 1). The Union will be timely notified of any changes.
Proposal 4
Section 4 CERTIFICATION OF QUALIFICATION
(A) The Administration shall identify the name, position and principal duties of all staff officials, full or part time, responsible for implementing the EEO and AEP programs. (See attachment 3). The Union shall be timely notified of any changes.
A. Positions of the Parties
1. Agency
The Agency contends that the proposals are nonnegotiable because they do not directly concern the conditions of employment of bargaining unit employees. In this regard, the Agency argues that the proposals relate to "managers and supervisors, rather than employees at large." Agency's Statement of Position at 13. Further, with respect to these and other proposals referring to attachments, the Agency asserts that no attachments were included in the Union's proposals.
2. Union
The Union contends that the proposals restate the requirements of MD-714. The Union further states that the references to attachments were meant to keep the proposals open-ended so that the Agency could identify the relevant information noted in the proposals. However, because "bargaining never reached a conclusion on [these] Proposal[s], [the Agency] did not identify" the relevant information and the references to attachments "ha[ve] no operative effect[.]" Union's Response at 20.(3)
B. Analysis and Conclusions
Proposals 3 and 4 require the Agency to identify the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs. The Agency has not shown, and it is not otherwise apparent to us, that the proposals require the Agency to do anything more than that. Accordingly, we interpret the proposals as requiring the Agency simply to furnish information to the Union concerning the specified individuals.
The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. For example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991) (Provision 3); National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68 (1988) (Provisions 9 and 10). The Agency argues that Proposals 3 and 4 do not concern the conditions of employment of bargaining unit employees because the proposals relate to management officials.
In determining whether a matter involves the conditions of employment of bargaining unit employees, we must consider whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).
We find that the proposals pertain to bargaining unit employees because the proposals require the Agency to furnish information to the Union regarding the operation of the EEO and AEP programs, programs which cover and directly apply to bargaining unit employees. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1395 (1987) (Proposal 3), affirmed sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1492-93 (D.C. Cir. 1989).
We further find that there is a direct connection between the information covered by the proposals and the work situation or employment relationship of bargaining unit employees. EEO and AEP programs directly affect the conditions of employment of bargaining unit employees by, for example, affecting promotions, training programs, and the treatment of employees. See National Federation of Federal Employees, Local 1256 and K.I. Sawyer Air Force Base, Michigan, 29 FLRA 171, 173 (Provision 1) (1987). We note that by requiring the Agency to provide information concerning the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs, the proposals inform employees of the Agency's EEO and AEP programs and thereby facilitate employees' access to the programs. Accordingly, we find that there is a direct connection between the proposals and the work situation or employment relationship of bargaining unit employees. Therefore, we find that the proposals concern the conditions of employment of bargaining unit employees. See National Federation of Federal Employees, Local 1430 and U.S. Department of the Navy, Naval Facilities Engineering Command, Northern Division, Philadelphia, Pennsylvania, 39 FLRA 581, 589 (Proposal 3) (1991) (Department of the Navy) (information concerning an agency's EEO resources "clearly concerns conditions of employment").
The Agency does not contend, and it is not otherwise apparent, that the disclosure of information concerning the names, duties, and responsibilities of the officials responsible for implementing the EEO and AEP programs is contrary to law or regulation. Accordingly, we conclude that Proposals 3 and 4 are negotiable.
VII. Proposal 5
(B) The Personnel Director shall certify in writing that the qualifications of all identified staff officials have been reviewed by competent authority and meet the qualification standards in the handbook X118 [sic].
A. Positions of the Parties
1. Agency
The Agency argues that the proposal does not concern the conditions of employment of unit employees. The Agency also argues that Proposal 5 is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute because it "seeks to designate a particular individual within the Agency who would make the referenced certification." Agency's Statement of Position at 13. The Agency contends that the Union's explanation of the term "Personnel Director," as described below, is misleading and "at odds with the common usage of that term in Federal agencies in general and in the [Agency] in particular." Id. at 14.
2. Union
The Union defines "Personnel Director" as "any official acting with the authority of the agency who is designated by the Employer to administer the AEP." Union's Petition for Review at 3; Union's Response at 21. The Union states that the proposal merely restates the requirement in MD-714 that the Agency's AEP "must include a policy statement in which certification of qualifications is made." Union's Response at 22.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 5 concerns the conditions of employment of bargaining unit employees.
As noted by the Union, Proposal 5 is intended to require the Agency to include in its AEP a policy statement indicating that a "certification of qualifications" of all identified staff officials responsible for implementing the EEO program has been made. Id. at 22. We interpret Proposal 5 as an attempt to provide unit employees with assurance that staff officials who are responsible for administering the EEO program are qualified for that responsibility. Accordingly, we find that the proposal is designed to assure unit employees that the EEO program is administered by qualified officials. As we found in connection with Proposals 3 and 4, EEO programs directly affect the conditions of employment of bargaining unit employees. Consequently, we find that Proposal 5 is directed at the conditions of employment of unit employees and concerns the conditions of employment of unit employees.
Having found that Proposal 5 concerns unit employees' conditions of employment, we next address the Agency's argument that the proposal conflicts with management's right to assign work. Proposals that involve the assignment of specific duties to particular individuals, or preclude management from assigning particular functions to particular individuals, directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Patent Office Professional Association v. FLRA, 873 F.2d 1485, 1488 (D.C. Cir. 1989), affirming sub nom. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (Proposal 1, third sentence); Defense Mapping Agency, 39 FLRA at 1179 (Proposal 1); and National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 35 FLRA 642 (1990).
Proposal 5 requires the "Personnel Director" to certify that the officials responsible for implementing the EEO program are qualified to do so. The Union defines the term "Personnel Director" as any official designated by management to administer the EEO program. The Agency disputes the Union's definition. The Union provides no source for its definition other than MD-714. We reject the Union's assertion that by requiring the "Personnel Director" to certify that the officials responsible for implementing the EEO program are qualified to do so, the proposal merely restates MD-714. Contrary to the Union's assertion, the relevant section of MD-714 does not require an agency's Personnel Director to certify such officials' qualification requirements. The effect of the proposal is to preclude management from exercising its discretion to require an official other than the "Personnel Director" to certify that particular officials are qualified. As Proposal 5 specifies a particular management official to perform a specified task, we conclude that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138 (1991) (Proposal 2) (U.S. Department of Agriculture) (a proposal requiring management to assign first-line supervisors the task of signing and issuing forms to affected employees directly interfered with management's right to assign work).
Proposal 5 is distinguishable from International Federation of Professional and Technical Engineers, Local No. 1 and U.S. Department of the Navy, Norfolk Naval Shipyard, 38 FLRA 1589, 1602-03 (1991) (Proposal 3) (Norfolk Naval Shipyard), where we found negotiable a proposal requiring performance appraisal forms to include a space for endorsement by the "Activity head designee." In Norfolk Naval Shipyard, we noted that the agency's regulations provided that the "Activity head designee" could be any military officer or civilian official at the activity and, therefore, we did not interpret the proposal as specifying the particular agency official to perform the task.
We note that the defect in Proposal 5 may be easily cured by the Union. If the Union does not intend to restrict the Agency's authority to designate officials to submit the required certification, the Union could, among other things, delete the portion of the proposal referring specifically to the "Personnel Director." See U.S. Department of Agriculture.
We note the Union's assertion that to the extent that any one of the proposals is construed to interfere with the exercise of a management right, the proposal is intended as an appropriate arrangement. However, the Union has not shown how requiring the "Personnel Director" to submit the certification would benefit employees or, conversely, how submission of the certification by another Agency official would adversely affect employees. Therefore, we find that the Union has not provided a record sufficient for us to determine whether Proposal 5 constitutes an appropriate arrangement. See American Federation of Government Employees, Council of Prison Locals, Local 919 and U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth, Kansas, 42 FLRA 1295 (1991) (Federal Bureau of Prisons).
The parties bear the burden of creating a record on which we can base a negotiability determination. Department of Veterans Affairs Medical Center. Because the record here does not contain information sufficient for us to determine whether Proposal 5 constitutes an appropriate arrangement, we are unable to make such a determination. Accordingly, as we have concluded that Proposal 5 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to Proposal 5.
VIII. Proposal 6
Section 5 PREVENTION OF SEXUAL HARASSMENT
The Administration shall conduct a training session on sexual harassment each year for Union representatives and EEO counselors.
New Employees shall be advised of their right to a work environment free of sexual harassment, counseling, and the complaints procedures, at the time of their entrance on duty. A revised copy of "Not for Women Only, Guide to the Prevention and Elimination of Sexual Harassment in the Workplace" shall be distributed to all managers and employees.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 6 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because the proposal requires training on a particular subject matter, for specified individuals, and at specified intervals. The Agency also contends that the Union's interpretation of the proposal "is in clear conflict with the plain language of the proposal itself." Agency's Statement of Position at 14.
2. Union
The Union states that the purpose of Proposal 6 is to permit Union representatives to attend the EEO training session on sexual harassment that the Agency offers to its EEO counselors. The Union asserts that such training furthers the purpose of the AEP and does not concern the work of the Agency.
B. Analysis and Conclusions
We find that, as applied to Union representatives, Proposal 6 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. However, we further find that, as applied to EEO counselors, the proposal directly interferes with management's right to assign work. Accordingly, as applied to Union representatives, Proposal 6 is negotiable; as applied to EEO counselors, Proposal 6 is nonnegotiable.
An agency's right t