49:1074(102)NG - - AFGE, Local 2879 & HHS, SSA, Office of Hearings and Appeals, San Diego, CA - - 1994 FLRAdec NG - - v49 p1074



[ v49 p1074 ]
49:1074(102)NG
The decision of the Authority follows:


49 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2879

AFL-CIO

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

SAN DIEGO, CALIFORNIA

(Agency)

0-NG-2121

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 23, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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), and concerns the negotiability of two provisions of a Memorandum of Understanding (MOU) and five provisions of an interest arbitration award that were disapproved by the Agency head pursuant to section 7114(c) of the Statute.

Provision 1, which states that management will provide reasonable amounts of administrative leave as necessary, does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and is negotiable.

Provision 2 provides that "downtime" will be approved for certain periods. Provision 2 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is not an appropriate arrangement under section 7106(b)(3) of the Statute.

Provision 3 states that all employees who qualify for a California handicapped license plate or parking placard shall be given a parking space. Provision 4 provides that the Agency shall reserve parking spaces for the Chief Administrative Law Judge, the Hearing Office Manager, and the Supervisory Staff Attorney. Provision 5 requires that the remaining parking spaces be allocated to all other employees, with preference given to vanpool and/or carpool vehicles. Provision 4 is nonnegotiable because it does not concern the conditions of employment of bargaining unit employees. Provisions 3 and 5 are nonnegotiable because they seek to regulate the conditions of employment of employees in another bargaining unit.

Provision 6, which provides that the parking provisions will be effective immediately, is nonnegotiable because it requires the Agency to implement other nonnegotiable provisions.

Provision 7 provides that a particular conference room will be available as a one-person office for either a staff attorney or for the management services assistant. The portion of Provision 7 relating to a staff attorney is nonnegotiable because it does not concern the conditions of employment of bargaining unit employees. The portion of Provision 7 relating to the management services assistant is dismissed because the record is insufficient for us to make a negotiability determination.

II. Background

In November and December of 1989, the parties negotiated on the impact and implementation of the Agency's decision to relocate the San Diego Office of Hearings and Appeals. The parties reached agreement on a majority of the issues and prepared an MOU reflecting their agreement. The MOU, prepared in 1989, remained unsigned pending the resolution of two outstanding issues concerning parking assignments and the floor plan for a new office. The parties reached impasse over the two outstanding issues, and the Union filed a request for assistance with the Federal Service Impasses Panel (the Panel) under section 7119(b)(1) of the Statute. The Panel recommended that the parties submit the dispute to an interest arbitrator for mediation-arbitration. The Arbitrator held a mediation session on January 22, 1992, and an arbitration hearing on January 23, 1992. The Arbitrator issued his award on December 28, 1992.

The interest arbitration award and the MOU were submitted for Agency head review.(2) Subsequently, on January 27, 1993, the Agency head disapproved two provisions of the MOU (Provisions 1 and 2) and five provisions of the award (Provisions 3 through 7).

The Union filed a petition for review with the Authority on February 9, 1993. Pursuant to the Union's request under section 2424.5 of the Authority's Rules and Regulations, the Authority placed the petition for review in abeyance on February 25, 1993, pending the resolution of related unfair labor practice charges. On June 23, 1993, the Union notified the Authority that the related unfair labor practice charges had been resolved and requested that the Authority resume processing the instant negotiability appeal. Thereafter, the Authority issued an Order resuming the processing of the negotiability appeal.

III. Preliminary Matters

A. Timeliness

The Agency argues that the Union failed to serve the Agency head designee with the petition for review and that, consistent with section 2424.4(b) of the Authority's Rules and Regulations, the petition for review should be dismissed. The Agency head disapproved provisions of the MOU and the interest arbitration award on January 27, 1993, and served the Union with the disapproval by certified mail. As the disapproval was served by mail, the petition for review was required to be filed by February 16, 1993, in order to be timely. See 5 C.F.R. §§ 2424.3, 2429.21(a), and 2429.22.

Although the petition for review, dated February 9, 1993, was not initially served on the Agency head designee, the Union submitted an amended certificate of service indicating that it served the Agency head designee with the petition for review on February 12, 1993. Therefore, the Union timely served the Agency head with the petition for review.

B. Supplemental Submissions

In the Union's June 23 request to resume processing the negotiability appeal, the Union raised substantive arguments in support of the negotiability of the disputed provisions. Pursuant to section 2424.8 of the Authority's Rules and Regulations, the Authority will not consider any submission filed by any party, whether supplemental or responsive in nature, other than those authorized under sections 2424.2 through 2424.7 of the Authority's Rules and Regulations, unless the Authority has either requested, or granted permission to file, such a submission. American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1497 (1993). Our Rules and Regulations do not authorize the filing of additional arguments in the context of a request to resume processing of a negotiability appeal. As the Authority did not request additional arguments and as the Union did not request, and was not granted, permission to file such arguments, we will not consider them.

Further, the Union argued in its response brief that it was not served with the attachments to the Agency's statement of position and was, thus, "unable to review pertinent arguments" based on those attachments. Response at 3. The Union asked to be served with the attachments and, pursuant to 5 C.F.R. § 2424.8, requested permission to file a supplemental brief relating to the attachments. In an Order dated September 3, 1993, the Authority directed the Agency to serve the Authority and the Union with the attachments and granted the Union permission to file a supplemental brief limited to arguments relating to the attachments. We will consider the Union's supplemental brief, filed on September 29, 1993, to the extent that it relates to attachments that were newly filed with the Agency's corrected statement of position.

IV. Provision 1

Article II. Section 2. Floor Plan and Work Stations

Management will provide bargaining unit employees with sufficient work time for them to pack and unpack their personal belongings[,] to take down and set up their workstations, and such other reasonable amount of [a]dministrative leave time as is necessary.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

Citing National Federation of Federal Employees, Local 3 and U.S. Department of Transportation, United States Coast Guard, Milwaukee, Wisconsin, 45 FLRA 805 (1992) (U.S. Coast Guard), the Agency argues that by requiring that administrative leave be granted, Provision 1 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B). According to the Agency, the requirement that employees be granted such leave in connection with the move, "although beneficial to employees if it relieves them of having to remain at work during the period the movers are in the office, seriously impairs the Agency's right to assign work which needs to be accomplished despite the presence of movers in the office." Statement of Position at 6.

2. Union

The Union states that the provision is intended to "recognize that the Agency may wish to allow administrative leave" if employees needed to vacate the premises in connection with the move. Petition for Review at 2. The Union argues that the provision does not directly interfere with management's right to assign work because it provides employees administrative time for work related to the Agency's relocation of the office.

B. Analysis and Conclusions

Proposals that require management to grant requests for administrative leave prevent management from requiring employees to remain on duty to perform work and, thereby, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See U.S. Coast Guard, 45 FLRA at 809. However, proposals that preserve management's discretion to determine whether to grant administrative leave do not directly interfere with management's right to assign work. See National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 752 (1992) (Red River Army Depot).

Provision 1 states that management will provide employees with a reasonable amount of administrative leave as is necessary. The Union states that Provision 1 is intended to "recognize that the Agency may wish to allow administrative leave" in connection with the move. Petition for Review at 2. The Union's statement is not inconsistent with the plain wording of the provision. Based on this interpretation of the provision, we find that Provision 1 allows management to determine when it is necessary to grant administrative leave. Accordingly, we find that Provision 1 requires management to grant administrative leave only when management determines that it is necessary to do so.

Because Provision 1 preserves management's discretion to determine whether to grant administrative leave, it is distinguishable from the proposal at issue in U.S. Coast Guard, relied on by the Agency. We find that as Provision 1 preserves management's discretion, it does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Red River Army Depot.

Accordingly, for the foregoing reasons, Provision 1 is negotiable.

V. Provision 2

Article III. Section 4. Performance

B. Downtime will be approved for periods of packing, moving and unpacking as well as any systems failures in connection with the move that affect employee[s'] performance of their GJTs [Generic Job Tasks].

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it requires the Agency to approve downtime in specific circumstances and thereby prohibits the Agency from holding employees responsible for their performance during the periods of downtime. The Agency interprets downtime as a work period during which employees are not subject to performance standards and notes that the provision clearly states that downtime "will be approved," not, as the Union argues, that management will "consider" approving downtime. Statement of Position at 7. The Agency maintains that as Provision 2 requires management to modify its performance expectations for employees in specific circumstances, it dictates the content of performance standards and, thus, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Agency contends that because Provision 2 concerns the content of performance standards and job requirements of employees, it "does not concern an arrangement for adversely affected employees within the meaning of section 7106(b)(3) of the Statute." Id. at 9. Even assuming that the Authority finds that the provision is an arrangement, the Agency argues that the provision precludes management from holding "employees accountable for their work performance during the move or during any systems failures in connection with the move" and, therefore, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Id. at 10.

2. Union

The Union asserts that Provision 2 is intended to "allow consideration by means of approved downtime" of factors that may affect employee production such as packing and unpacking, and computer malfunctions. Petition for Review at 2. The Union disputes the Agency's assertion that employees would not be subject to performance standards as a result of Provision 2. The Union argues that Provision 2 "does not state or imply that employees are immune from [performance] standards" but merely requires that when evaluating employees' performance during the relocation, management consider "matters outside [of employees'] control[.]" Response at 14. The Union argues that to "the extent that 'downtime' involves reduced performance expectations during a relocation, [Provision] 2 is similar to negotiable proposals which would allow an employee a 'grace period'[,]" because such proposals do "not prevent the employer from holding employees to the performance standards during the performance rating period." Id.

The Union further asserts that the provision is "an appropriate arrangement for a condition which is beyond the control of the employees . . . ." Petition for Review at 2. The Union maintains that "consideration given as 'downtime' to employees is a benefit to them . . . ." Response at 15. The Union states that, when read in connection with the preceding undisputed section of the MOU,(3) Provision 2 identifies factors resulting from the relocation that adversely affect performance. The Union contends that because the "decline in [employee] productivity" is caused by the relocation and not by Provision 2, there is "no cost to the employer to offset the benefits to employees of according them the 'downtime.'" Response at 15-16 (emphasis in original).

B. Analysis and Conclusions

1. Provision 2 Directly Interferes with Management's Rights to Direct Employees and Assign Work

Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. For example, National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 573 (1991) (Customs Service). Proposals which restrict an agency's authority to determine the content of critical elements and performance standards directly interfere with management's rights to direct employees and assign work. See id. at 574.

The Union argues that Provision 2 requires "consideration by means of approved downtime" for matters affecting employees' performance that are "outside [of their] control[.]" Petition for Review at 2; Response at 14. The Agency contends that the provision clearly states that downtime "will be approved," not, as the Union argues, that management will "consider" approving downtime. Statement of Position at 7.(4) Provision 2 provides in part that downtime "will be approved" during the relocation for time spent by employees packing, unpacking, and moving and for computer system failures associated with the relocation. To the extent that the Union asserts that the provision requires management to merely consider approving downtime in certain circumstances or to merely consider the factors noted in the provision when evaluating employees' performance, we find that such assertions are inconsistent with the plain wording of the provision. We do not base negotiability determinations on statements of intent that are inconsistent with the plain wording of a provision. See National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991) (Department of Agriculture).

We find that Provision 2 requires management to approve downtime for time spent by employees on activities associated with the move that would otherwise have been spent by the employees on the performance of their GJTs. By requiring management to approve downtime for time employees spent on those activities, the provision, in effect, requires management to change or adjust its performance expectations in light of the specific activities noted in the provision and, thereby, places a substantive limitation on management's ability to determine the content of critical elements and performance standards. Accordingly, the provision directly interferes with management's rights to direct employees and assign work. See National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993) (Department of Veterans Affairs), petition for review filed, No. 93-1201 (D.C. Cir. Mar. 11, 1993). See also American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1281 (1990) ("proposals requiring management to adjust or change production expectations in circumstances identified by the proposals dictate the content of applicable performance standards" and, consequently, directly interfere with management's rights to direct employees and assign work).

2. Provision 2 Is Not an Appropriate Arrangement

Having found that Provision 2 directly interferes with management's rights to direct employees and assign work, we next consider whether the proposal is nevertheless negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176 (1994) (Member Armendariz concurring in part and dissenting in relevant part) (Department of Commerce). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

For the reasons stated in the separate opinions of Member Armendariz and Chairman McKee set forth below, the Authority finds that Provision 2 does not constitute an arrangement because it is not tailored and is, therefore, nonnegotiable.

A. Opinion of Member Armendariz

In my opinion, Provision 2 is not an arrangement for the following reasons. I find that consistent with my separate opinion in Department of Commerce, in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of the exercise of a management right. Because Provision 2 is not limited only to those employees who would receive lower performance appraisals as a result of the factors noted in the provision, but applies to all employees who have less time to perform their GJTs, Provision 2 is not an arrangement within the meaning of section 7106(b)(3) of the Statute. As Provision 2 directly interferes with management's rights to direct employees and assign work and is not an arrangement, I conclude that Provision 2 is nonnegotiable.

B. Opinion of Chairman McKee

In Department of Commerce, the Authority agreed with various court decisions that under section 7106(b)(3) of the Statute, arrangements must be tailored to compensate or benefit employees suffering adverse effects from the exercise of a management right and cannot be so broad as to apply to all employees without regard to whether they are likely to suffer such adverse effects.

As worded, I conclude, in agreement with my colleagues, that Provision 2 affords downtime to all employees affected by the relocation. However, I conclude also that the provision would afford downtime without regard to whether those employees' performances are, or likely would be, adversely affected by time spent on activities associated with the relocation.

In particular, I am unable to conclude that the Union intends its reference to matters that "affect" employee performance as encompassing only adverse effects. In this regard, the record reflects that, in a section which was not disapproved by the Agency head and which would immediately precede Provision 2 in the MOU, the parties agreed to require the Agency to give full and fair consideration to "factors adversely affecting performance as a result of the relocation." Reply Brief at 3; Attachment 1 to Statement of Position at 5 (section 4A). That this other, related provision is expressly limited to addressing adverse effects of the relocation supports an interpretation of Provision 2 as not encompassing such limitation. Moreover, there is no basis on which to conclude that it would be difficult for the Union to identify which employees are likely to suffer adverse effects from the relocation or to target those employees in the provision. As such, I find the provision distinguishable from Provision 4 in Department of Commerce, which a majority of the Authority found constituted an arrangement despite its prophylactic nature because, among other things, it was "impossible to determine reliably" which employees likely would suffer adverse effects. 49 FLRA at 191. Finally, the Union has not alleged or shown, and it is not otherwise apparent to me, that a failure to approve downtime for affected employees necessarily would adversely affect them. In fact, it appears reasonable to conclude that some of the employees encompassed by Provision 2 would, in fact, be entirely unaffected by such failure.

I adhere to the view expressed by a majority of the Authority in Department of Commerce that, to constitute arrangements, proposals need not be so narrowly tailored in all cases as to benefit or compensate only those employees who would suffer an adverse effect as a result of an exercise of a management right. However, I find no circumstances in this case which justify a failure to expressly target adversely affected employees. I conclude, therefore, that Provision 2 is not sufficiently tailored and, as a result, does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. As the provision directly interferes with management's rights to direct employees and assign work, it is nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 2782 and U.S. Department of Commerce, Bureau of the Census, Washington, D.C., 49 FLRA 470 (1994) (Proposal 1) (Member Armendariz concurring).

VI. Provision 3

(a) All hearing office employees who qualify for a California handicap license plate or parking placard shall be given a parking space.

Provision 4

(b) The OHA [Office of Hearings and Appeals] shall reserve parking spaces for the Chief Administrative Law Judge, the Hearing Office Manager, and the Supervisory Staff Attorney.

Provision 5

(c) The remaining parking spaces shall be allocated to all other employees in the Office of Hearing[s and] Appeals, with preference given to vanpool/carpool vehicles.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 3 is inconsistent with Government-wide regulations governing the allocation of parking spaces at Federal buildings because it allocates parking based on California law rather than the Federal regulations. Further, the Agency asserts that based on International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 45 FLRA 1154, 1162 (1992) (Naval Aviation Depot)(5), Provision 3 is nonnegotiable because it is not limited in scope to employees represented by the Union and non-supervisory employees not represented in any unit.

The Agency contends that Provision 4 seeks to regulate the conditions of employment of supervisory and management personnel and, therefore, is nonnegotiable based on Naval Aviation Depot. The Agency also contends that Provision 4 is inconsistent with the Government-wide regulation concerning the allocation of parking spaces because the provision does not provide that employees who work unusual hours are entitled to priority parking.

The Agency argues that Provision 5 is nonnegotiable based on Naval Aviation Depot because it is not restricted to bargaining unit employees and non-supervisory employees not represented in any unit. The Agency further argues that Provision 5 is inconsistent with applicable Government-wide regulations.

2. Union

The Union states that the parking provisions were issued by the Arbitrator "as a unitary subject matter" and that they address "unit and non-unit [] use of parking spaces[,]" as required by applicable Government-wide regulations. Response at 16, 17 (emphasis omitted).

The Union asserts that there is no evidence that the California standards for determining first priority in parking are inconsistent with applicable Federal parking regulations and argues that, therefore, Provision 3 is negotiable.

The Union asserts that Provision 4 vitally affects the conditions of employment of bargaining unit employees. The Union states that Provision 4, fashioned by the Arbitrator, sets aside three parking spaces for employees who have priority under the applicable Federal parking regulations. The Union argues that "although Provision 4 speaks to the parking spaces of certain non-bargaining unit members, it does so in order to follow" the order of precedence set forth in the applicable Government-wide parking regulations and "does not concern itself with non-bargaining unit conditions[.]" Id. at 19. According to the Union, Provision 4 provides a "mathematical 'take away' from the parking spaces available for the bargaining unit." Id.

The Union contends that Provision 5, also fashioned by the Arbitrator, vitally affects the conditions of employment of bargaining unit employees and is consistent with applicable regulations.

B. Analysis and Conclusions

In Cherry Point, the court examined the Authority's adoption of the vitally affects test used in the private sector to determine whether proposals directly relating to the conditions of employment of persons outside a bargaining unit might nevertheless fall within the scope of the duty to bargain. 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. See generally American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1416-17 (1992) (HCFA).

As stated above, 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 or supervisory personnel who are excluded by the Statute from bargaining units. The court noted that pursuant to section 7112 of the Statute, managers and supervisors "are legally disabled from belonging to any bargaining unit[.]" Cherry Point, 952 F.2d at 1442. Therefore, the court found that permitting a union to seek to negotiate to regulate the conditions of employment of supervisors or other 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).

Provision 4 requires the Agency to reserve parking spaces for the Chief Administrative Law Judge, the Hearing Office Manager, and the Supervisory Staff Attorney. By its terms, Provision 4 seeks to regulate the conditions of employment of management and supervisory personnel who are excluded by the Statute from bargaining units. Accordingly, based on the court's reasoning in Cherry Point, we conclude that Provision 4 does not concern the conditions of employment of bargaining unit employees and is nonnegotiable. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 47 FLRA 512 (1993) (Provision 4) (pursuant to Cherry Point, a provision that purports to regulate the terms and conditions of employment of supervisory or management personnel is nonnegotiable).(6)

Provision 3 requires that all hearing office employees who qualify for a California handicapped license plate or parking placard be given a parking space. Provision 5 requires that the remaining parking spaces be allocated to all other employees in the Agency's San Diego office, with preference given to vanpool and/or carpool vehicles. By requiring the Agency to provide parking to "all" employees in the office who meet the criteria of the provisions, Provisions 3 and 5 purport to regulate the conditions of employment of those employees. The record indicates, however, that some employees in the Agency's San Diego office are in another unit represented by the National Treasury Employees Union (NTEU). See Statement of Position at 20; Petition for Review at 4.(7)

Provisions 3 and 5, as written, are not consistent with a construction that limits their terms to employees who are in the bargaining unit represented by the Union and non-supervisory employees who are not in any bargaining unit. See Naval Aviation Depot, 45 FLRA at 1162. Rather, the provisions encompass employees represented by the Union as well as employees in another bargaining unit.

We stated above that in Cherry Point the court noted the fundamental principle that a union is the exclusive representative of employees in the recognized unit, and those employees only. Consistent with this principle, the court held, as relevant here, that a union may not seek to "regulate the conditions of employment of . . . employees in other bargaining units." 952 F.2d at 1443. According to the court, "[s]uch bargaining proposals are impermissible" under the Statute. Id. As Provisions 3 and 5 seek to regulate the conditions of employment of employees in another bargaining unit, we conclude, based on the court's reasoning in Cherry Point, that Provisions 3 and 5 are nonnegotiable. See International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086 (1993) (Marine Corps Security Force Battalion) (proposal was found nonnegotiable because it attempted to regulate the conditions of employment of employees in bargaining units other than those represented by the union).

We note the Union's assertion that the applicable Government-wide parking regulations, 41 C.F.R. §§ 101-20.104 et seq., require parking proposals to address all unit and non-unit employees in the Agency and that the parking provisions formulated by the Arbitrator merely reflect these requirements. However, the Union has not shown that the regulations necessarily preclude a proposal that is limited in scope to prescribing parking policies for employees in the Union's bargaining unit and non-supervisory personnel who are not represented in any unit. Accordingly, we reject the Union's assertion that the applicable parking regulations required the Arbitrator to formulate parking provisions addressing all Agency employees.

In summary, we conclude that based on the court's reasoning in Cherry Point, Provisions 3, 4, and 5 are nonnegotiable. Because the provisions are not limited to employees in the Union's bargaining unit and non-unit, non-supervisory personnel, we do not address "whether the 'vitally affects' test is satisfied with respect to those persons . . . ." 952 F.2d at 1443. Having found that the provisions are nonnegotiable based on Cherry Point, we do not address the Agency's arguments that the provisions are inconsistent with Government-wide regulations.

VII. Provision 6

(f) The preceding parking benefits shall be effective immediately, and they are not retroactive except to the limited extent that may be provided when and if the following occurs: Should the Social Security Administration delay more than five working days in implementing the parking provisions contained herein, then such provisions shall be given retroactive effect by appropriate reimbursement of costs computed from the date the Administration receives the Arbitration Award in which these benefits were promulgated.

A. Positions of the Parties

1. Agency

The Agency argues that Provision 6 is contrary to section 7114(c) of the Statute because it does "not allow for the requisite 30-day period for [A]gency head review running from the date the [A]rbitrator completed his award." Statement of Position at 18-19.

2. Union

The Union argues that Provision 6 preserves the Agency head's right to review the provisions and is consistent with section 7114(c) of the Statute.

B. Analysis and Conclusions

Provision 6 requires the Agency to implement the "parking benefits" in Provisions 3, 4, and 5 immediately and provides that if the Agency fails to implement the provisions within 5 days, the provisions become retroactive. For the reasons stated above in our discussion of Provisions 3, 4, and 5, those provisions are nonnegotiable. Because Provision 6 requires the Agency to implement Provisions 3, 4, and 5, and because those provisions are nonnegotiable, we conclude that Provision 6 is, therefore, nonnegotiable. See HCFA, 44 FLRA at 1480 (the Authority found that a proposal requiring management to take action required by other nonnegotiable proposals was nonnegotiable).

Having concluded that Provision 6 is nonnegotiable because it requires the Agency to implement nonnegotiable provisions, we need not address the parties' arguments as to whether Provision 6 is consistent with section 7114(c) of the Statute.

VIII. Provision 7

Floor Plan

(c) A new door will be added to what is presently the north-side conference room (the Agency might keep the existing door locked, or it might decide to remove that door entirely and permanently close up the opening). This room will be available as a one-person office for either a staff attorney or for the Management Services Assistant.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency argues that Provision 7 is nonnegotiable under Naval Aviation Depot because it regulates the conditions of employment of a staff attorney represented by NTEU and a management services assistant. The Agency notes that, contrary to the Union's statement in the petition for review, the plain wording of Provision 7 clearly limits the use of the room to either a staff attorney or a management services assistant. The Agency maintains that, by failing to limit the provision to bargaining unit employees and non-supervisory employees not in any unit, the provision is nonnegotiable.

2. Union

The Union argues that the Agency is free to choose how to use the room described in Provision 7 but acknowledges that if the Agency "choose[s] to use the room for a staff attorney, then it indeed refers to an employee in another bargaining unit." Petition for Review at 4. The Union contends that by stating that "'the room could be used' as a work location for allegedly non-bargaining unit employees[,]" the Agency "reads the [a]ward as providing [management] with an option" of how to use the room in question. Response at 22 (quoting Statement of Position at 20) (emphasis in Response). The Union asserts that, therefore, "there is no claim in the record before the Authority that would support the conclusion sought by [the Agency]." Id. Further, the Union disputes the Agency's "faulty assumption that permanent assignment of work space to a particular individual cannot affect the working conditions" of bargaining unit employees. Id. at 23.

B. Analysis and Conclusions

Provision 7 provides that the room in question will be available as a one-person office for either a staff attorney or the management services assistant. The Agency maintains that the plain wording of Provision 7 limits the use of the room to either a staff attorney or a management services assistant. The Union argues that Provision 7 preserves the Agency's right to choose how to use the room. We find that the Union's statement of intent is inconsistent with the plain wording of the provision. The plain wording of the provision states that the room in question "will be available" for use as an office by either a staff attorney or the management services assistant. Because the Union's interpretation of the provision is inconsistent with the plain wording of the provision, we will not base our negotiability determination on the Union's statement of the meaning of the provision. See Department of Agriculture, 40 FLRA at 1141.

The parties do not dispute that the staff attorney referenced in the provision is in another bargaining unit. By providing in part that the room will be available for use by a staff attorney, Provision 7 seeks to regulate the conditions of employment of an employee in another bargaining unit. As Provision 7 seeks to regulate the conditions of employment of an employee in another bargaining unit, we conclude, for the reasons stated above with respect to Provisions 3 and 5, that this portion of Provision 7 is nonnegotiable. See Marine Corps Security Force Battalion.

The Union requests that we sever negotiable portions of the provisions from portions that are found nonnegotiable. Therefore, we will examine the negotiability of the remaining portion of Provision 7. That portion of the provision provides that, in the alternative, the room in question will be available for use by the management services assistant and, thereby, seeks to regulate the conditions of employment of that individual. According to the interest arbitration award, the management services assistant is not represented by the Union. However, the parties do not specifically state, and we are unable to determine from the record, whether the management services assistant referenced in Provision 7 is a supervisor or management official, an employee in another bargaining unit, or an employee not in any bargaining unit.

If the management services assistant is an employee in another bargaining unit or is a supervisor or management official, then, consistent with Cherry Point, the portion of Provision 7 attempting to regulate that individual's conditions of employment would be nonnegotiable for the reasons stated previously with respect to Provisions 3 through 5 and the portion of Provision 7 noted above. However, if the management services assistant is an employee not in any bargaining unit, then, as we stated previously, a different analysis is used. Specifically, with respect to employees not in any bargaining unit, the court in Cherry Point 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. 952 F.2d at 1441. In these circumstances, a proposal would be negotiable if the proposal was shown to vitally affect the conditions of employment of bargaining unit employees.

The parties bear the burden of creating a record on which we can base a negotiability determination. See National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411, 1413 (1994). Because the record here does not contain information sufficient for us to determine the status of the management services assistant, we are unable to decide the negotiability of this portion of the provision pursuant to Cherry Point. Accordingly, we will dismiss the petition for review as to this portion of Provision 7. See HCFA, 44 FLRA at 1423.

IX. Order

The Agency must rescind its disapproval of Provision 1.(8) The Union's petition for review as to Provisions 2 through 7 is dismissed.

Opinion of Member Talkin, Dissenting as to Provision 2

Contrary to the conclusion of my colleagues, I would find that Provision 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

In National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in relevant part), we held that in determining whether a proposal constitutes an arrangement, we would "not require that proposals be tailored with surgical precision." Thus, while we agreed with the courts addressing this issue that the Statute does not require negotiations over arrangements that make no attempt to target specifically those employees suffering adverse effects, we concluded that we should not require proposals presented as appropriate arrangements "to be so narrowly tailored that the ability of adversely affected employees to obtain benefits under section 7106(b)(3) of the Statute would be seriously impaired." Id. In my view, Provision 2 is sufficiently tailored to support a finding of negotiability.

Provision 2 requires the approval of "downtime" for any periods of activity connected with the move that would "affect employee[s'] performance of their GJTs[.]" Thus, under the plain language of the provision, the negotiated benefit would inure only to those employees whose job performance was affected by the necessity of performing nonwork-related tasks required by management's relocation of its facility. As there would be no reason to exclude time during which job performance is enhanced, I interpret the proposal as applying only to employees whose performance is likely to be adversely affected by time spent on activities associated with the relocation. In addition, for the reasons set forth at length by the majority in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 725-28 (1993) (Member Armendariz dissenting in relevant part), I would find this provision to be an arrangement because it "seeks to protect employees from being penalized by less favorable performance appraisals as a consequence of the fact that they engaged in legitimate activities . . . or were subject to other competing demands on their time because of factors beyond their control." Id. at 727. Thus, Provision 2 "is limited to addressing a specific, identified hurt" and "necessarily targets employees who are subject to that hurt . . . ." Id. In my view, this is all that section 7106(b)(3) requires.

Applying the second part of the analysis required by National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986), I would find that the provision is an appropriate arrangement. In this regard, I would find that any burden on management connected with the inability to appraise employees for time spent on nonwork-related activities involved with the relocation would be outweighed by the benefits to employees of being appraised solely on the performance of their GJTs.

Accordingly, I would order the Agency to rescind its disapproval of Provision 2.




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

1. The opinion of Member Talkin, dissenting as to Provision 2, is set forth at the end of this decision.

2. For the purposes of this negotiability decision, the parties consider the MOU to have been executed on the same date as the interest arbitration award, December 28, 1992. See Statement of Position at 2; Supplemental Brief at 3.

3. Article III, Section 4.A. provides: "Employees' and the Union's identification and/or documentation of any factors adversely affecting performance as a result of relocation will receive full and fair consideration." Statement of Position, Attachment 1 at 5.

4. According to the Agency, the term "downtime" constitutes "a work period during which employees are not subject to performance standards." Statement of Position at 7. The Union does not define the term.

5. Naval Aviation Depot is the Authority's decision on remand from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point).

6. Prior to the court's decision in Cherry Point, the Authority had held that an agency was not required to bargain over the conditions of employment of management and supervisory officials, but could do so at its election. For example, National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 531, 531-