45:0289(26)NG - - NFF, Local 2050 and EPA - - 1992 FLRAdec NG - - v45 p289



[ v45 p289 ]
45:0289(26)NG
The decision of the Authority follows:


45 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Union)

and

ENVIRONMENTAL PROTECTION AGENCY

(Agency)

0-NG-1974

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 19, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals.1/ Proposals 10q and 10r specify particular purposes for which official time is authorized. We conclude that Proposals 10q and 10r are negotiable.

II. Background

"[T]he parties have been discussing the need for a change in the way that official time has been used and accounted for by certain Union representatives" since July 1990. Petition at 1. On July 26, 1991, the Union submitted an official time proposal to replace Article V of the parties' current collective bargaining agreement.2/ When the Agency did not respond to the proposal, the Union filed a petition for review with the Authority requesting a negotiability determination. As noted above, only Proposals 10q and 10r remain in dispute.

III. Proposal 10q

Authorized uses of official time are:

q. To pursue other representational activities that protect the right of EPA Headquarters professional employees to organize, bargain collectively and participate through the Union in decisions which affect them, and that facilitate and encourage the amicable settlement of disputes between employees and managers, contribute to effective conduct of public business, and safeguard the public interest.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 10q is nonnegotiable because it violates section 7131 of the Statute. The Agency maintains that the Union intends to "expand current interpretations of representational activities, conduct of public business, and safeguard of public interest, well beyond the intent of Congress and the Authority." Statement at 6 (citation omitted). The Agency asserts that "the [U]nion is currently engaged in representational activities with respect to private citizens, public interest groups, private industry, and members of the [American Federation of Government Employees (AFGE)] bargaining unit." Id. The Agency argues that the Union's activities are "outside the scope of sections 7101 and 7131 of the Statute" because the Union is not the certified representative of "private citizens, public interest, private industry, or members of the AFGE bargaining unit." Id.

The Agency states that the Union "has established itself as the clearinghouse or public information office for [Agency] programs . . . . and through these efforts [is] attempting to negotiate the mission of the [A]gency, [and] the [A]gency's right to determine its technology, methods and means." Id. at 6-7. The Agency also asserts that "[t]he [U]nion has also attempted to enhance the reputation of individual [U]nion officials by allowing them to testify as 'expert witnesses.'" Id. at 7. The Agency argues that because the Union is engaged in the above activities, Proposal 10q is nonnegotiable in that:

(1) it interferes with the [A]gency's right under section 7106(b)(1) to determine the technology, methods, and means of performing its work; (2) it interferes with [the Agency's] right to determine its mission under section 7106(a)(1) of the Statute[;] and (3) it interferes with the [A]gency's right to assign work.

Id.

Finally, the Agency argues that Proposal 10q is inconsistent with section 7131 of the Statute because it would authorize the Union to conduct internal Union business on official time and also allow the Union to abuse official time.

2. Union

The Union states that the Agency's assertion that the Union intends to use official time to represent private citizens, public interest groups, private industry, and members of the AFGE bargaining unit, "is simply not so." Response at 21. The Union states that "[t]he Union holds recognition for professional employees at the Agency's Washington, D.C. headquarters. That is the only group which the Union seeks to represent on official time." Id. at 21-22. The Union states that Proposal 10q "is intended to be a 'catch-all' provision providing official time for legitimate representational matters authorized under the Statute, yet not specifically enumerated in the collective bargaining agreement." Id. at 22. The Union also states that Proposal 10q is not intended to authorize official time for Union officials to appear as expert witnesses in private litigation.

The Union notes that "the Agency has not offered any argument or evidence in support of [its] allegation" that Proposal 10q interferes with the Agency's right to determine the technology, methods and means of performing work under section 7106(b)(1) of the Statute. Id. at 24. The Union asserts that "[t]here is no technological relationship between the proposal and accomplishing or furthering the performance of the Agency's work. It should be obvious to the Agency that the proposal does not concern technology at all." Id. at 25. The Union also asserts that "[t]he Agency has not established any relationship between the accomplishment of its mission and the use of official time for representational business under the instant proposal." Id. at 26. The Union argues that Proposal 10q does not interfere with the Agency's right to determine the technology, method and means of performing work.

The Union maintains that "[t]here is nothing in the proposal on its face or in the Union's explanation which even relates to the Agency's mission, much less interferes with the Agency's right to determine it." Id. The Union states that the Agency offers only "unsupported and conclusory allegations" that Proposal 10q interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its mission.

The Union notes that the Authority has expressly held that it will no longer follow American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA 215 (1985) (Wright-Patterson Air Force Base), reversed and remanded sub nom. American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), order on remand, 23 FLRA 679 (1986), which the Agency cites in support of its contention that Proposal 10q interferes with the Agency's right to assign work. The Union asserts that it has clearly established that the instant proposal concerns the authorization of official time to Union officials for the performance of representational activities.

The Union asserts that there is nothing in Proposal 10q or in the Union's explanation of that proposal that relates to the institutional structure of the Union. The Union argues, therefore, that Proposal 10q does not concern the conduct of internal Union business. The Union also argues that the Agency's fears of abuse by the Union of official time do not provide a basis for finding an otherwise negotiable proposal nonnegotiable.

B. Analysis and Conclusions

The plain wording of Proposal 10q provides for the use of official time for representational activities that protect the right of bargaining unit employees "to organize, bargain collectively and participate through the Union in decisions which affect them, and that facilitate and encourage the amicable settlement of disputes between employees and managers, contribute to effective conduct of public business, and safeguard the public interest." The Union explains that Proposal 10q "is intended as a 'catch-all' provision providing official time for legitimate representational matters authorized under the Statute, yet not specifically enumerated in the collective bargaining agreement." Id. at 22.

In our view, the Union's statement of intent is consistent with the plain wording of Proposal 10q. As worded, the proposal does not require the Agency to grant official time in any amount or for any specific purpose that is outside the scope of section 7131 of the Statute. Proposal 10q merely establishes that official time will be available for other "legitimate representational matters" which are not specifically set forth in other provisions of the parties' collective bargaining agreement. Therefore, based on the plain wording of Proposal 10q and the Union's statements as to the intent and effect of the proposal, we find that Proposal 10q provides for the use of official time consistent with the purposes set forth in section 7131 of the Statute.

We note that each of the Agency's arguments concerning the effect of Proposal 10q on management's rights is based on an interpretation of the proposal that presumes that the Union will abuse official time by using official time for purposes that are not consistent with section 7131 of the Statute. However, the Agency's allegations as to the intended use of official time by the Union and the Agency's interpretation of Proposal 10q based on those allegations are not supported by the wording of the proposal or the record. Accordingly, we reject the Agency's arguments based on that interpretation that Proposal 10q interferes with the Agency's rights to determine the technology, methods and means of performing its work under section 7106(b)(1), to determine its mission under section 7106(a)(1), and to assign work under section 7106(a)(2)(B) of the Statute. Further, an agency cannot remove a negotiable item--one that is consistent with applicable law and regulation--from the bargaining table because it expects it to be abused. Other proceedings are available to remedy such abuse if it occurs. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, MA, 23 FLRA 542, 544 (1986) (VA Medical Center).

As Proposal 10q is consistent with section 7131 of the Statute, and does not directly interfere with management's rights under section 7106 of the Statute. Consequently, we conclude that Proposal 10q is negotiable.

IV. Proposal 10r

Authorized uses of official time are:

r. To respond to parties, including journalistic media and members of the general public, who make inquiries of the Union about issues affecting the terms and conditions of employment of the bargaining unit.

A. Positions of the Parties

1. Agency

The Agency states that Proposal 10r "is non-negotiable for all the reasons set forth with respect to [Proposals 10a and 10q]." Statement at 7. The Agency incorporates its arguments with respect to those proposals in its position concerning Proposal 10r. Specifically, the Agency asserts that the proposal "is an abuse of official time[,]" and, therefore, nonnegotiable. Id. at 5. The Agency contends that the "communications [sought by the proposal] do not constitute representational activities or authorized uses of official time as contemplated by [section 7131 of] the Statute or the Authority." Id. The Agency included copies of the Union's newsletter, which it claims provides evidence that the Union intends to use official time for communications that do not constitute representational activities approved under section 7131 of the Statute.

The Agency maintains that the Authority's holding in VA Medical Center, that an agency cannot remove a negotiable item from the bargaining table because it expects it to be abused, is not applicable to Proposal 10r. The Agency states that it "does not expect abuse of official time[;] rather the [A]gency knows and has provided documentary evidence to support its claim of abuse of official time by the [U]nion." Id.

The Agency also argues, for the reasons stated in Proposal 10q, that Proposal 10r directly interferes with management's rights to determine the technology, methods and means of performing its work under section 7106(b)(1) of the Statute and its right to assign work under section 7106(a)(2)(B). The Agency further contends that Proposal 10r is nonnegotiable because it "interferes with the [A]gency's authority to determine and conduct its mission" under the Statute. Id. at 7 (citing Bureau of Prisons, Federal Correctional Institution, (Danbury, Connecticut), 17 FLRA 696 (1983) (Bureau of Prisons)).

2. Union

The Union states that Proposal 10r "means that the Union has the right to use official time to respond to inquiries from the public, including journalistic media, concerning issues affecting the terms and conditions of employment of the bargaining unit that the Union has raised with the Agency." Petition at 8. As an example of the situations which Proposal 10r is intended to address, the Union cites an event in 1987-88, when bargaining unit employees were affected by "emissions from renovations" at the Agency's facilities. Id. The Union states that bargaining unit employees conducted informational picketing concerning the issue, which led to media coverage of the event. The Union states that the media coverage "led to many inquiries from the public about the situation, and the Union responded to these inquiries." Id. The Union maintains that the Union has a right to official time "to present the employees' point of view as their exclusive representative." Id. The Union states that it does not intend Proposal 10r "to authorize . . . official time for any and all contacts with the public and journalists, but only for those situations in which there is a clear representational issue dealing with [the] terms and conditions of employment of bargaining unit members." Id. at 9.

The Union argues that the Agency has not established that Proposal 10r interferes with the Agency's right to determine and conduct its mission under the Statute. The Union asserts that "the Agency has shown absolutely no connection between the Union's proposal and the Agency's mission." Response at 30. The Union also asserts that the Agency "has provided nothing to support its position aside from the bare assertion." Id. The Union states that "there is no relationship between the Union's representatives' receipt of official time to respond to questions from the press or public regarding issues affecting working conditions of bargaining unit employees and the mission of the [Agency.]" Id. The Union asserts that Proposal 10r "simply cannot be considered to be 'mission related.'" Id.

The Union contends that Proposal 10r does not "authorize official time for the conduct of internal [U]nion business." Id. at 31. The Union asserts that the Agency has not made "even the barest attempt to demonstrate any relationship between the instant proposal, either on its face or in the Union's explanation of its intent, and the institutional structure of the Union." Id. The Union also states that Proposal 10r "would authorize official time for Union representatives to respond to questions from the press and public concerning conditions of employment . . . . [and] would not be used to 'represent' anyone else." Id. at 32. The Union argues that "an agency's fear that a union will abuse negotiated rights is not grounds to find a proposal outside the duty to bargain." Id. at 31.

Finally, the Union asserts that the Agency "has not even attempted to demonstrate how the instant proposal interferes with its rights" to determine the technology, methods and means of performing work. Id. at 32. The Union argues that Proposal 10r does not interfere with the Agency's rights under section 7106(b)(1) to determine the technology, methods and means of performing work. The Union asserts that Proposal 10r "concerns official time for representational duties." Id. at 33.

B. Analysis and Conclusions

We conclude that Proposal 10r is negotiable.

Proposal 10r provides for official time for the Union to respond to parties, including the media and the public, concerning matters affecting the conditions of employment of unit employees. The Union explains that the proposal is not intended "to authorize . . . official time for any and all contacts with the public and journalists, but only for those situations in which there is a clear representational issue dealing with [the] terms and conditions of employment of bargaining unit members." Petition at 9. Based on the plain wording of the proposal and the Union's statement of intent, we find that the proposal authorizes official time only for the Union to use to deal with the media or the public on matters that affect the terms and conditions of employment of unit employees.

The right to publicize matters affecting unit employees' terms and conditions of employment is protected under section 7102 of the Statute. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129, 1135 (1990) (Scott Air Force Base) and the cases cited therein. As noted in Scott Air Force Base, the right to publicize matters affecting employees' terms and conditions of employment encompasses a situation where an employee, acting in his or her capacity as a union representative, gives an interview to a newspaper reporter concerning the possibility of staff reductions at the agency. Id. Therefore, an employee, acting in the capacity of a union representative, who publicizes matters affecting unit employees' terms and conditions of employment to the media or public, is engaged in representational activity authorized under the Statute. We note that although the right to publicize matters affecting unit employees' terms and conditions of employment is protected under section 7102 of the Statute, it is not "unfettered." Bureau of Prisons, 17 FLRA at 697. See also Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044, 1048 (1987).

Section 7131(d) of the Statute encompasses official time for certain representational activities. An employee acting in the capacity of a union representative who responds to inquiries from the media or public regarding matters affecting unit employees' terms and conditions of employment is engaged in such representational activities. Consequently, we reject the Agency's contention that Proposal 10r is inconsistent with section 7131(d) because it would authorize the Union to conduct internal Union business on official time and allow the Union to abuse official time by conducting activities which are not consistent with that section. We also note, with respect to the Agency's contention that the proposal would allow the Union to abuse official time, that, as mentioned above, an agency cannot remove an otherwise negotiable proposal from the bargaining table because it expects it to be abused. See VA Medical Center, 23 FLRA at 544. Further, the Union newsletters offered by the Agency as "documentary evidence to support its claim of abuse of official time by the [U]nion" do not establish that the Union has abused or will abuse official time. Statement at 5. There is no evidence that the "communications about internal [U]nion business" in the newsletters were prepared by employees on official time. Id. Because Proposal 10r merely seeks to establish that official time may be used by employees who are Union representatives to engage in representational activities, we conclude that the proposal is consistent with the requirements of section 7131 of the Statute.

We further find, as we did with respect to Proposal 10q above, that Proposal 10r does not directly interfere with management's right to determine the technology, methods and means of performing its work and its right to assign work under the Statute. The Agency contends that the proposal directly interferes with these rights because the Union seeks to establish itself as the "clearinghouse or public information office" for the Agency and to "enhance the reputation" of Union officials and, through these efforts, is attempting to negotiate concerning management's rights to determine the technology, methods and means of performing its work and its right to assign work under the Statute. Statement at 7. We find that the Agency's allegations are not supported by the wording of the proposal or the record. The Agency has not demonstrated that the proposal interferes with any of these rights.

We also find that the Agency has not established that Proposal 10r directly interferes with its right to determine its mission under section 7106(a)(1) of the Statute. Nothing in Proposal 10r concerns the Agency's mission and the record does not demonstrate that Proposal 10r is inconsistent with the Agency's right to determine its mission.

Accordingly, we find that Proposal 10r is negotiable.

V. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 10q and 10r.3/

APPENDIX

OFFICIAL TIME

UNION PROPOSAL OF JULY 26, 1991

This agreement replaces Article V of the Collective Bargaining Agreement between the parties dated November 13, 1986. Its purpose is to accommodate the increased work load on the Union and to ease the uncertainties faced by supervisors of Union officials regarding access to the Union officials for Agency work during their terms of office.

1. Five full-time positions will be allotted to the Union for the offices of: President; President-Elect; Chief Steward; Senior Vice-President; and Vice-President for Health and Safety.

2. All other authorized official time used by representatives of the Union in conducting authorized representational duties as listed below shall be charged against a bank of 5,000 hours per fiscal year.

3. In the event of the Union's using all of the 5,000 hour time bank before the end of the fiscal year, the parties may agree to a case-by-case "reasonable time" use of additional time by the Union as determined in a special meeting of the Labor-Management Committee.

4. All Union representatives who use official time under this agreement, including Union representatives other than those on 100 percent official time, shall submit Form 3160-5(4-78) biweekly to his/her time-keeper along with the regular time-accounting form. Categories of use will be recorded consistent with FPM [Federal Personnel Manual] Bulletin 711-161. Management shall provide the Union with an accounting of the time used from the bank on a bi-weekly basis. Union representatives using time from the bank shall be identified to the Personnel Services Management Branch once annually when the first use of time occurs.

5. Time spent by Union officers, stewards or other representatives in administering or otherwise complying with provisions of a collective bargaining agreement on Total Quality Management (TQM) will not be charged against the 5,000 hour time bank. This paragraph of this agreement will be subject to review and amendment if needed after one year of experience under a collective bargaining agreement on TQM.

6. Except as noted below, persons occupying the five full-time positions shall receive a performance rating of Fully Successful (375 points) from their normally assigned supervisors. Aside from this automatic rating, no Union representative shall be prejudiced or adversely affected for using any amount of official time for authorized Union activity.

7. Persons who are on more than 60 percent official time for Union activities over a one-year period shall be offered re-training for up to 120 days when they return to duty with their program offices with the expectation of serving there at substantially full time. If a Union representative accepts this re-training, no record of performance shall be maintained for that period and no rating for that period will be given the employee. Supervisors are, however, expected to informally counsel and consult with the employee as to progress during the re-training period. No record of informal counselling or consulting will be maintained. No special evaluation of such employees will be done; they shall be rated by the normal processes. No loss of grade or change of classification shall be imposed on such employees during the re-training period. No discrimination against such employees shall be tolerated.

8. Allegations of managers harassing Union officials in execution of their duties, or of Union officials abusing their official time allotments, shall be heard by the LMC, which shall attempt to reconcile and resolve the dispute or recommend appropriate disciplinary action if indicated. These allegations shall be disposed of on a priority basis, i. e. within one month of their being raised by either party.

9. Upon request by management to the Union President, Union officials on 100 percent official time shall be released from Union duties for limited service in their program offices to meet an emergency. "Emergency" means, for the purpose of this agreement only, a situation in which management must meet both internal and external deadlines (i.e. deadlines set by the Agency and deadlines set by an outside authority, such as a court, Congress, etc.), and there is no other eligible and qualified person available to do the work that has to be done. Since the intent of this agreement is to allow Union officials to serve on a full-time basis, emergency assignments must be real and legitimate and, for the most part, be of short duration (3 to 4 weeks at the most). This in necessary to enable the Union official to return as soon as possible to his/her full-time job as Union official performing authorized representational functions. Any such service shall be noted by management, and if the work was performed satisfactorily, the Union official shall be eligible to receive a rating of "Exceeds Expectations" (425 or more points) for that rating year.

10. Authorized use of official time are:

a. To communicate with bargaining unit members on issues involving terms and conditions of employment of bargaining unit members[;]

b. To prepare and present grievances, ULPs and arbitration cases[;]

c. To handle complaints by bargaining unit employees in attempting to resolve problems before a grievance or other formal complaint is filed[;]

d. To prepare for and participate in mediation and impasse proceedings[;]

e. To prepare witnesses[;]

f. To prepare for and conduct negotiations[;]

g. To prepare replies to notices of proposed disciplinary, adverse or unacceptable performance action[;]

h. To prepare reconsideration statements in connection with denials of within-grade increases in salary[;]

i. To meet with representatives of the Union's national staff in connection with grievances, arbitrations, ULPs and negotiations[;]

j. To prepare for and participate in an Authority investigation or preparation for hearing as a union representative[;]

k. To prepare for and participate in joint labor-management committees[;]

l. To participate in training designed primarily to further the interest of good government by improving labor-managment relations[;]

m. To prepare and maintain records and reports required of the union by 5 USC 7120(c)[;]

n. To contact Members of Congress and their staffs to discuss representational matters, i.e. matters affecting the terms and conditions of employment of bargaining unit employees[;]

o. To prepare for and conduct formal discussions with management concerning personnel policies and practices and other terms and conditions of employment[;]

p. To prepare for and participate in examination of employees in the unit by a management representative in connection with an investigation if the employee reasonably believes that disciplinary action may result from the examination, or if the employee requests representation[;]

q. To pursue other representational activities that protect the right of EPA Headquarters professional employees to organize, bargain collectively and participate through the Union in decisions which affect them, and that facilitate and encourage the amicable settlement of disputes between employees and managers, contribute to effective conduct of public business, and safeguard the public interest[;]

r. To respond to parties, including journalistic media and members of the general public, who make inquiries of the Union about issues affecting the terms and conditions of employment of the bargaining unit.

FOR THE UNION FOR THE AGENCY

Dwight Welch Date Leigh Diggs Date

William Hirzy Date Marita Llaverias Date




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1/ The Union filed a petition for review as to thirteen proposals after the Agency did not respond to the Union's request for an allegation of nonnegotiability. Subsequently, the Agency alleged only that Proposals 7, 8, 9, 10a, 10n, 10q, and 10r were nonnegotiable. See Statement of Position (Statement) at 1. In its response to the Agency's statement, the Union stated that it sought "a determination on the negotiability o