American Federation of Government Employees, Local 12 (Union) and United States, Department of Labor (Agency)

[ v60 p533 ]

60 FLRA No. 109

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

and

UNITED STATES
DEPARTMENT OF LABOR
(Agency)

0-NG-2757

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

December 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of eight proposals. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position and the Agency filed a reply to the Union's response. For the reasons that follow, we find that Proposals 1, 7, and 8 are within the duty to bargain, Proposals 5 and 6 are negotiable only at the Agency's election, and Proposals 2, 3, and 4 are outside the duty to bargain.

II.      Proposal 1 (Article 9, Section 4c)

The Department shall maintain the existing racquetball court/exercise facility (FPB Rooms S3019-S3023), including the showers and locker rooms. The entire facility shall be open for use by employees every workday between 5:00 AM and 9:00 PM, as well as at all hours on the weekends and holidays.

A.      Positions of the Parties

1.      Agency

      The Agency asserts that the proposal does not involve a condition of employment under 5 U.S.C. § 7103(a)(14). In this regard, the Agency contends that, although an exercise facility may benefit employee morale and health, a proposal involving such a facility "does not relate to policies, practices, or matters affecting working conditions" and, therefore, does not concern a mandatory subject of bargaining. Agency's Statement of Position (SOP) at 4.

      The Agency contends that Authority precedent does not support the Union's claim that the proposal concerns a condition of employment. In this regard, the Agency claims that the Authority has not found a direct connection between similar proposals and the work situation or employment relationship of bargaining unit employees. See Agency's Reply at 1-2 (citing United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 16 FLRA 335 (1984)). In addition, the Agency contends that, even assuming the Union can establish a past practice of allowing unit employees to use the exercise facility, the Union has not demonstrated that the practice concerns a condition of employment. See id. at 2 (citing United States Dep't of Labor, Wash., D.C., 38 FLRA 899, 908 (1990) (Dep't of Labor)).

2.      Union

      The Union maintains that conditions of employment for bargaining unit employees may be established by the parties' agreement or by practice. Union's Response at 2 (citing Dep't of Def., Dep't of the Army, Fort Buchanan, San Juan, P.R., 24 FLRA 971 (1995), rev'd, Am. Fed'n of Gov't Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), remanded to United States Dep't of the Army, Fort Buchanan, San Juan, P.R., 37 FLRA 919 (1990)). According to the Union, the Agency has operated the exercise facility since the mid-1970's and has recognized it as being a condition of employment in the parties' most recent collective bargaining agreement. See id. at 3-4 (citing Article 9, § 3(a) of the parties' agreement).

B.      Meaning

      The Union explains that Proposal 1 requires the Agency to continue, as it has since the mid-1970's, to operate the exercise facility at the location and times specified in the proposal. The Agency does not dispute the Union's stated meaning and operation of the proposal. [ v60 p534 ] As the parties do not dispute the meaning of the proposal and the Union's explanation comports with the plain wording of the proposal, we review the proposal in accordance with the meaning provided by the Union. See Antilles Consol. Educ., 56 FLRA 664, 665 (2000) (ACE).

C.      Analysis and Conclusion

      In determining whether a proposal concerns a condition of employment of bargaining unit employees, the Authority applies the two-prong test set forth in Antilles Consol. Educ. Ass'n, 22 FLRA 235 (1986) (Antilles). Under this test, the Authority determines whether: (1) the proposal pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of unit employees. See id. at 237.

      Proposal 1 requires the Agency to continue to operate the exercise facility for employee use. As the proposal pertains to bargaining unit employees, it meets the first prong of the Antilles test.

      With respect to the second -- direct connection --prong of the test, the Authority, "inquires into the extent and nature of the effect of the practice on working conditions," determining whether there is a "link" or "`nexus' between the matter and the worker's employment" that has a "`direct effect on the work relationship'" of employees. United States Dep't of the Army, Aviation Sys. Command, St. Louis, Mo., 36 FLRA 418, 422-24 (1990) (Aviation Systems Command) (quoting, AFGE, 2761, 866 F.2d at 1445, 1449). In "close cases," which "fall[] within [a] gray area" where a matter might or might not be a condition of employment under the Authority's precedent, the existence of a "past practice can be determinative." AFGE, 2761, 866 F.2d at 1448.

      In Aviation Systems Command, the Authority held that an agency was required to negotiate over a proposal concerning the establishment of a fitness center because the fitness center "directly affect[ed]" the work situation of unit employees. Aviation Systems Command, 36 FLRA at 424. In finding a nexus between the proposal and the employment relationship, the Authority relied on agency regulations that "linked employee participation in physical fitness activities to more efficient work performance." Id. at 423. The agency's regulations noted that physical strength and stamina may be required for some jobs and that the agency encouraged all employees to engage in physical fitness activities. Id. at 423; cf. AFGE, Local 2077, 43 FLRA 344, 355 (1991) (fitness training during duty time found to be a condition of employment where employees were subject to weight restrictions) (AFGE, Local 2077).

      The Agency here also links employee's physical fitness with more efficient work performance. In this regard, the Agency publicly acknowledges that "[f]itness is an important part of staying healthy and productive at work." Dep't of Labor, Employee Wellness at http://dol.gov/oasam/doljobs/programs/wellness.htm. Moreover, this linkage between physical fitness and job performance has been ongoing. In this connection, the parties' most recent agreement demonstrates that the Agency previously linked physical fitness with the work performance and productivity. Specifically, the agreement states that "wellness and fitness programs [are] a valuable means of enhancing the well-being, and thereby, the performance and productivity of . . . employees." Union's Response at 3 (citing Article 9, § 3(a)).

      The Agency's public statements and the parties' most recent agreement are consistent with the federal government's position supporting programs that promote and maintain the physical and mental fitness of its employees. See 5 U.S.C. § 7901. Also consistent with these views is the Comptroller General's precedent finding that agencies are authorized to utilize appropriated funds to pay the costs of employee memberships in private fitness facilities. See Matter of Def. Med. Sys. Support Ctr. -Health & Fitness Program, 70 Comp. Gen. 190 (1991). Based on the foregoing, we find that the same link between the use of fitness facilities and the employment relationship found to exist in Aviation Systems Command exists here. Consequently, the Agency's reliance on Antilles and Wright-Patterson AFB, where no such connection was established, is misplaced.

      Furthermore, insofar as the issue here is a "close case[]," the fact that the Agency has an established practice of providing the exercise facility "tips the balance" in favor of finding that the facility is a condition of employment. AFGE, Local 2761, 866 F.2d at 1448. In this connection, it is undisputed that the Agency has operated the exercise facility "[s]ince the mid-1970's." Petition for Review at 3. The Agency is correct, in general, that "[a] matter which is not a condition of employment does not become [one] . . . through practice or agreement[.]" Dep't of Labor, 38 FLRA at 908. Nevertheless, consistent with AFGE, Local 2761, 866 F.2d at 1448, the Agency's established practice further supports a conclusion that Proposal 1 concerns a condition of employment within the meaning of § 7103(a)(14) of the Statute and is, therefore, within the Agency's duty to bargain. [ v60 p535 ]

III.     Proposal 2 (Article 12, Section 7e) [n2] 

Four rating levels will be used for each element and the employee must be rated on each element at one of the four (4) levels. [Supervisors must also provide a narrative description of performance in terms of results achieved against standards to support the element rating.][ [n3] ]
The following are the element rating levels:
1) Exceeds - when the employee exceeds the described level of performance in the standard for the element.
2) Meets - when the employee meets the described level of performance in the standard for the element.
3) Needs Improvement - when the employee needs to improve in order to meet the described level of performance in the standard for the element, but performance is above Fails to Meet.
4) Fails to Meet - when the employee fails to meet the described level of performance in the standard for the element.

Proposal 3 (Article 12, Section 9)

Each appraisal must conclude with a summary rating of the employee's overall performance. One (1) of five (5) ratings must be assigned as defined below:
a. Outstanding Performance - where performance exceeds the described level in performance standards for all critical elements, and for fifty (50) percent or more of the other elements. Performance does not fall below the standards for any element.
b. Highly Effective Performance - where performance exceeds the described level in the performance standards for fifty (50) percent or more of the critical elements. Performance does not fall below the standards for any element.
c. Fully Successful Performance - where performance meets the described level in the performance of all critical elements.
d. Minimally Satisfactory Performance - where performance in one (1) or more critical elements is slightly below standard.
e. Unacceptable Performance - where performance fails to meet the described level in the performance standard for one (1) or more critical elements.

A.      Positions of the Parties

1.      Agency

      The Agency claims that Proposals 2 and 3 are outside the duty to bargain because they are inconsistent with management's rights to direct employees and to assign work under § 7106(a)(2)(A) and (B) of the Statute. The Agency contends that the determination of the number of performance levels affects the Agency's ability to establish and communicate performance standards, limits the Agency's range of judgments regarding performance in the performance appraisal process, and limits the range of rewards and sanctions the Agency can apply to performance. See SOP at 6 and 9.

2.      Union

      The Union argues that Proposals 2 and 3 do not affect management's rights because the rating levels specified in the proposals were negotiated into the parties' 1992 agreement. According to the Union, these rating levels have resulted in effective communication between the employees and their supervisors by allowing employees to know what to expect regarding their performance ratings. According to the Union, maintaining these rating levels will enhance the efficiency and overall productivity of affected employees.

B.      Meaning

      The Union explains that Proposal 2 and 3 require supervisors to rate bargaining unit employees using one of the rating levels described in the proposals. With regard to Proposal 3, the Union also explains that the proposal requires the Agency to inform employees what level of performance is expected in order to achieve a particular summary rating. The Agency does not object to the Union's explanation of the meaning and operation of the proposals. As the Union's explanation comports [ v60 p536 ] with the plain meaning of the proposals, we review the proposals in accordance with the meanings provided by the Union.

C.      Analysis and Conclusion

      The Authority has consistently held that proposals establishing the rating levels or criteria for performance evaluations affect management's rights to direct employees and assign work. See Phila. Metal Trades Council, 38 FLRA 59, 61 (1990); Serv. & Hosp. Employees Int'l Union, Local 150, 35 FLRA 521, 531-33 (1990) (Hosp. Employees Int'l); and Am. Fed'n of State, County & Mun. Employees, AFL-CIO, Council 26, 13 FLRA 578 (1984). Applying this precedent, the Authority has found that proposals establishing particular levels of performance in individual job elements required to achieve a particular summary performance rating are outside the duty to bargain. See National Education Association, Overseas Education Association, Fort Bragg Ass'n of Educators, 53 FLRA 898 (1997).

      There is no dispute that Proposal 2 would require supervisors to rate employees using one of the four rating levels set forth in the proposal. As such, the proposal affects the Agency's rights to direct employees and assign work. See Hosp. Employees Int'l, 35 FLRA at 533; and AFGE, AFL-CIO, Local 1940, 16 FLRA 816, 821-22 (1984). There also is no dispute that Proposal 3 establishes the particular levels of performance required to achieve a particular summary performance rating. Consequently, this proposal also affects the Agency's rights to direct employees and assign work. See AFGE, Local 225, 56 FLRA 686, 687-88 (2000); and NAGE, Local R1-144, Fed. Union of Scientists & Eng'rs, 38 FLRA 456, 473 (1990).

      The Union does not assert that Proposals 2 and 3 are negotiable procedures or appropriate arrangements under § 7106(b)(2) or (3) of the Statute. Rather, the Union argues only that the proposals are negotiable because similar wording was included in the parties' 1992 agreement. The Authority has long held that "[t]he inclusion of an identical provision in a previous contract is not dispositive of the issue of whether th[at] provision [or any identical proposal] is inconsistent with applicable law and regulations." See Portsmouth Fed'l Employees Metal Trades Council, 34 FLRA 1150, 1157 (1990) (Metal Trades Council). Consequently, we conclude that Proposals 2 and 3 are outside the Agency's duty to bargain.

IV.      Proposal 4 (Article 16, Section 4)

No position in the bargaining unit, except those specifically excepted herein from merit staffing competition, will be filled except as a result of advertising for the particular vacancy or vacancies.

A.      Positions of the Parties

1.      Agency

      The Agency asserts that the proposal interferes with its rights to hire and make selections by limiting the sources from which management can make selections and by precluding management from selecting a candidate from outside the Agency. See SOP at 16-17 (citing AFGE, Local 1923, 44 FLRA 1405 (1992)).

      The Agency also asserts that the proposal is contrary to 5 U.S.C. § 335.103(b)(4). Agency's Reply at 4-5. Specifically, the Agency asserts that the proposal would cause undue delay and disruption to the hiring process and would require the Agency to "mislead employees in the bargaining unit by giving them the false impression that they were competing for a job when management intended, all along, to fill the position through another appropriate source." Id. at 5.

2.      Union

      The Union asserts that the proposal "would not preclude management from advertising anywhere else or from making a selection from any source it deems warranted." Union's Response at 15. Accordingly, the Union claims the proposal is merely a "procedural requirement" and that it "in no way infringes upon management's right[s.]" Id. (citing NTEU, 2 FLRA 280, 284 (1979)).

B.      Meaning

      The Union explains that the proposal would require the Agency to advertise all bargaining unit positions, except those that the parties' agreement specifically excludes from merit staffing competition. Petition for Review at 16. The Union explains that the proposal does not require the Agency to fill the position from among those responding to the advertisement and permits the Agency to determine whether, and from what source, it will fill a position. The Agency claims the proposal would prevent it from selecting a candidate from outside the Agency as well as from filling positions through "alternative means, such as Delegated Examining or the Outstanding Scholar Program." SOP at 18. [ v60 p537 ]

      When parties dispute the meaning of a proposal, the Authority will examine the wording of the proposal as well as the union's statement of intent to determine the meaning of the proposal. If the union's statement of intent comports with the plain words of the proposal, then the Authority will adopt the union's interpretation of the proposal for the purpose of construing what the proposal means and, based on its meaning, deciding whether it is consistent with law. See AFGE, Local 1917, 55 FLRA 228, 234 (1999) (citing AFGE, Local 1900, 51 FLRA 133, 138-39 (1995)). However, when a union's explanation is not supported by a reasonable construction, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the provision is contrary to law. See NTEU, 53 FLRA 539, 543 (1997).

      By its plain wording, Proposal 4 requires the Agency to fill positions "as a result of advertising . . . ." Therefore, the Union's explanation that the proposal does not require the Agency to fill positions from a particular source is inconsistent with the plain wording of the proposal, and it is not adopted. See id. Consistent with its plain wording and the Agency's argument, we interpret Proposal 4 as requiring the Agency to fill positions from among those responding to an advertisement.

C.      Analysis and Conclusion

      5 U.S.C. § 335.103(b)(4) provides that:

      Selection procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources, such as re-employment priority lists, reinstatement, transfer, handicapped, or Veteran Readjustment Act eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh and new viewpoints, and meet the agency's affirmative action goals.

      Proposal 4 requires the Agency to advertise all vacant bargaining unit positions not specifically excepted and to fill them from among candidates responding to the advertisement. Consequently, the proposal does not permit the Agency to fill positions from other appropriate sources, such as re-employment priority lists, reinstatement, or transfer. Cf. Soc. Sec. Admin., Chicago N. Dist. Office, 56 FLRA 274, 278 (2000) (arbitration award not deficient where award neither required agency to select from particular source nor prohibited agency from expanding pool of candidates). As such, Proposal 4 conflicts with 5 C.F.R. § 335.103(b)(4). Therefore, we conclude that Proposal 4 is outside the Agency's duty to bargain.

V.      Proposal 5 (Article 43, Section 3b(9)) [n4] 

This Article (Grievance Procedure) does not apply to . . . (9) filling of a position outside the bargaining unit except for a position which is threshold to the unit.
Proposal 6 (Article 43, Section 7a(3)) [n5] 
The procedures in this Article may be invoked when any position in the bargaining unit is to be filled through merit staffing, for which the grievant is a candidate. The procedures in this Article may be invoked when any position threshold to the bargaining unit is to be filled through merit staffing, for which the grievant is a candidate.[  [n6] ]

A.      Positions of the Parties

1.      Agency

      The Agency contends that the proposals do not concern a condition of employment because they concern threshold supervisory positions and not bargaining unit positions. According to the Agency, the proposals concern a permissive subject of bargaining over which the Agency has elected not to bargain. The Agency cites Nuclear Regulatory Comm'n, 17 FLRA 972 (1985) (Nuclear Regulatory Comm'n,), where the Authority held that procedures for challenging the selection of supervisors are integrally related to the procedures for filling supervisory positions. The Agency also cites Fed'l Bureau of Prisons, Allenwood Fed'l Prison Camp, Montgomery, Pa., 51 FLRA 650 (1995) (Fed'l Bureau of Prisons) for support. [ v60 p538 ]

2.      Union

      The Union claims that the parties' prior collective bargaining agreements have allowed bargaining unit employees to grieve selections for supervisory positions since 1980 and, therefore, the right to grieve such selections has become a condition of employment. Accordingly, the Union asserts that the proposals concern a mandatory subject of bargaining. The Union cites Fed'l Bureau of Prisons, 51 FLRA at 668 for support, relying on a finding by the administrative law judge in that case that "a bargaining unit employee's prospects for promotion to entry-level supervisory positions are among his/her conditions of employment . . . ." Union's Response at 18.

B.      Meaning

      With respect to both proposals, the Union explains that a threshold position is one that is outside of the bargaining unit, but one that bargaining unit members may apply for or be promoted to, such as a supervisory position. According to the Union, the term "merit staffing" refers to the procedures for advertising and competing for positions, as set forth in Article 16 of the parties' agreement. The Union explains that the proposals would allow bargaining unit employees applying for promotions to file a grievance when, for example, merit staffing rules are not followed. The Agency does not dispute the Union's explanation of the meaning and operation of Proposals 5 and 6. Thus, we review the proposals according to the meaning provided by the Union.

C.      Analysis and Conclusion

      The Authority has long held that matters concerning "promotion procedures for . . . supervisory positions" do not involve the conditions of employment of bargaining unit employees and are, therefore, outside the duty to bargain. Int'l Assoc. of Fire Fighters, Local F-61, 3 FLRA 438, 445 (1980) (Int'l Assoc. of Fir Fighters). The Authority has also held that "procedures for challenging the selection of supervisors are integrally related to the procedures for filling supervisory positions." Nuclear Regulatory Comm'n, 17 FLRA at 974. Such matters may, however, be negotiated at the election of an agency. See Int'l Assoc. of Fire Fighters, 3 FLRA at 445. Applying these principles, the Authority has held that any proposal that "would subject the selections and selection procedures for nonbargaining unit positions to the parties' negotiated grievance procedure" is outside the duty to bargain. NTEU, 25 FLRA 1067, 1079 (1987) (proposal that such selections be subject to the grievance procedure where "the product of unlawful discrimination" held permissive subject of bargaining); aff'd sub nom., NTEU v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988); see also AFGE, Local 3302, 52 FLRA 677, 680-82 (1996) (finding principle that contract terms that directly implicate supervisor working conditions are permissive subjects of bargaining is consistent with court's decision in United States Dep't of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992)).

      The Authority recently affirmed this longstanding precedent in the arbitration context by holding that, while proposed procedures for filling non-bargaining unit positions are "not mandatorily negotiable," they are "negotiable at the election of an agency," and thus enforceable. Social Security Admin., Baltimore, Md., 57 FLRA 690, 693 (2002). Because parties are free to agree to such procedures, the Authority has consistently upheld awards finding that particular contracts permit, or exclude, such grievances. Compare United States Dep't of Defense, Defense Commissary Agency, Ft. Lee, Va., 56 FLRA 855 (2000) (Chairman Wasserman concurring as to other matters) (upholding award where arbitrator interpreted parties' agreement as permitting such grievances) with AFGE, Local 3911, 56 FLRA 480 (2000) (upholding award where arbitrator interpreted parties' agreement as not permitting such grievances).

      The Union does not address this extensive precedent, which firmly establishes that selection procedures for supervisors do not concern a condition of employment for bargaining unit employees. Unlike the situation in Proposal 1, this is not a "close case" that falls within a "gray area." Supra at 4 (AFGE, 2761, 866 F.2d at 1448). As such, the Union's reliance on the parties' past practice is misplaced. In this regard, as set forth above, except in close cases where Authority precedent is not clear, a matter that is not a condition of employment does not become one through practice or agreement. Id. at 5 (citing Dep't of Labor, 38 FLRA at 908); see also AFGE Local 2761, 866 F.2d at 1448 ("rotation system for the filling of a supervisory position" is matter which cannot become condition of employment by agreement).

      In addition, the Union relies on the statement of the Administrative Law Judge in Fed'l Bureau of Prisons that "a bargaining unit employee's prospects for promotion to entry-level supervisory positions are among his/her conditions of employment[.]" Fed'l Bureau of Prisons, 51 FLRA at 668. This reliance is misplaced, however, because the Authority resolved the complaint in that case on a basis unrelated to the Judge's reasoning relied on by the Union and specifically found [ v60 p539 ] it "unnecessary to address" the Judge's reasoning in this regard. Id. at 656 n.8. Thus, Fed'l Bureau of Prisons does not provide any basis to question the long-standing precedent that these matters are permissive subjects of bargaining.

      Based on the foregoing, we conclude that Proposals 5 and 6 concern a permissive subject of bargaining that is negotiable only at the election of the Agency.

VI.      Proposal 7 (Appendix A) [n7] 

A.      Positions of the Parties

1.      Agency

      The Agency "acknowledges that negotiation of ground rules is part of the good faith negotiating process" under § 7114 of the Statute in establishing "preliminary arrangements" for negotiations. SOP at 33. However, the Agency argues that, because Proposal 7 concerns ground rules that would apply to future term agreement negotiations, the proposal does not concern a condition of employment and, therefore, it concerns a permissive subject of bargaining. See id. at 34 (citing United States Food and Drug Admin., N.E. and Mid-Atlantic Regions, 53 FLRA 1269, 1273 (1998)). According to the Agency, the issue of ground rules for negotiating a future agreement is a matter of first impression. The Agency asserts that "[t]he Union has offered no explanation why bargaining over ground rules of a future agreement is negotiable." Agency's Reply at 6.

2.     Union

      The Union claims the proposal concerns a mandatory subject of bargaining and that negotiating grounds rules "is consistent with the established framework of the Statute[,] which provides for the peaceful resolution of bargaining disputes . . . ." Union's Response at 24.

B.      Meaning

      According to the Union, Proposal 7 sets forth ground rules that would apply when negotiating a successor agreement. The Union further explains that the proposal is intended to allow "the parties to negotiate a future agreement without the expense or delay of first negotiating ground rules for the substantive negotiations, while still allowing the parties to mutually agree to modifications in the ground rules." Petition for Review at 52. The Agency does not dispute the Union's stated meaning and operation of the proposal. Thus, we review the proposal according to the meaning provided by the Union.

C.      Analysis and Conclusion

      The Authority has long held that ground rules affect conditions of employment of bargaining unit employees. See AFGE, AFL-CIO, 15 FLRA 461, 462 (1984) (AFGE, AFL-CIO). In this connection, the Authority has held that "ground rule negotiations are not separate from the collective bargaining process and the parties' mutual obligation to bargain in good faith." Harry S. Truman Memorial Veterans Hospital, Columbia, Mo., 16 FLRA 944, 945 (1984).

      The Agency explicitly acknowledges its obligation to bargain over ground rules proposals. See SOP at 33. However, the Agency argues that Proposal 7 does not concern a condition of employment because it applies to bargaining over "some future term agreement[.]" SOP at 32. The Agency's argument is unpersuasive, however, because ground rules proposals always apply to bargaining that will take place in the future. As the D.C. Circuit Court of Appeals has noted, "[a] proposed ground rule generally may encompass any `guide for the conduct of . . . negotiations.'" Ass'n of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 353 F.3d 46, 51 (D.C. Cir. 2004) (citing EPA, 16 FLRA 602, 613 (1984)) (ACT).

      In reviewing ground rules proposals, the Authority assesses "whether they are offered in good faith and whether they are designed to further the bargaining process." ACT, 353 F.3d at 51 (citing United States Dep't of the Air Force Hqtrs., Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 533 (1990)). As applied here, the Agency has not alleged or demonstrated that the Union's ground rules proposal was offered in bad faith or that it was not designed to further the bargaining process. Moreover, the Agency has offered no explanation why the Authority's long standing precedent, holding that ground rules affect conditions of employment of bargaining unit employees, should not be applied here. See AFGE, AFL-CIO, 15 FLRA at 462. The Agency's claim that the Union's ground rules proposal does not concern a condition of employment, therefore, is without merit.

      We, therefore, conclude that Proposal 7 concerns a condition of employment within the meaning of § 7103(a)(14) of the Statutes and is within the Agency's duty to bargain. [ v60 p540 ]

VII. Proposal 8 (New Article 6)

Labor Recognition Month. The parties agree that one month of each year, to be designated by the Union, shall be recognized as Labor Recognition Month. During that month, the Union will carry out a series of activities to publicize the contribution of organized labor to society. All employees will be provided administrative leave to participate in these activities. Local 12 representatives shall be provided official time to prepare and conduct the activities for Labor Recognition Month.

A.      Positions of the Parties

1.      Agency

      The Agency asserts that labor recognition month does not concern a condition of employment as defined by § 7103(a)(14) of the Statute because it does not involve personnel policies, practices, and matters affecting working conditions. Therefore, the Agency asserts that the proposal concerns a permissive subject of bargaining, about which the Agency has elected not to bargain.

2.      Union

      The Union asserts that Proposal 8 is an appropriate bargaining proposal "because of the contributions of the labor movement throughout history in fostering, promoting and developing the welfare of working people." Union's Response at 27.

B.      Meaning

      The Union explains that Proposal 8 is intended to educate employees about the role that unions have played in American society. According to the Union, the concept is "[s]imilar to any special emphasis program . . . such as Black History Month[,]" and the "[a]ctivities may include having speakers, showing movies/videos, conducting roundtable discussions, and the like." Petition for Review at 67. The Union explains that, under this proposal, Union representatives would be allowed official time to arrange and carry out such activities and employees would receive administrative leave to participate in the planned activities. The Agency does not dispute the Union's stated meaning and operation of the proposal. As the meaning of the proposal is not disputed, we review the proposal in accordance with the meaning provided by the Union.

C.      Analysis and Conclusion

      Under Authority precedent, a proposal that addresses "employees' use of duty time, without loss of pay, for certain activities" involves a condition of employment. AFGE, Local 2077, 43 FLRA at 355 (proposal permitting employees to use administrative leave to engage in exercise found to concern a condition of employment). In this regard, the Authority has explained that, "administrative leave allows employees to be absent from duty with pay" and, therefore, it affects conditions of employment. AFGE, Local 2022, 40 FLRA 371, 380 (1991) (proposal allowing employees to take administrative leave to attend Boy/Girl Scout functions concerned a condition of employment). The Authority has applied this precedent to conclude that a proposal concerned a condition of employment even where "the administrative leave requested" in the proposal was "for participation in a non-work related activity[.]" Id.

      Here, Proposal 8 would require the Agency to grant administrative leave to employees to attend labor recognition programs sponsored by the Union. As such, the proposal concerns employees' use of duty time, without loss of pay. Therefore, consistent with the foregoing precedent, the proposal concerns a condition of employment. Because the Agency makes no argument that the proposal is otherwise outside the duty to bargain, e.g., because it impermissibly affects management's rights or because it is otherwise contrary to law, we conclude that the proposal is within the Agency's duty to bargain.

VIII.      Order

      Proposals 2, 3, and 4 are outside the Agency's duty to bargain and Proposals 5 and 6 are negotiable only at the Agency's election. Proposals 1, 7, and 8 are within the Agency's duty to bargain, and the Agency shall, upon request, or as otherwise agreed to by the parties, negotiate with the Union over these proposals. [n8]  [ v60 p541 ]


APPENDIX

October 8, 2003

Union Proposal No.1

Appendix A

Ground Rules

These ground rules are to govern the conduct of negotiations for a new collective bargaining agreement between DOL and AFGE Local 12. The guiding principle is that agreements worked out between the Parties are most likely to deal constructively with the actual issues. Agreements worked out by the Parties are also more likely to be adhered to. Thus the procedures outlined here are intended to give the Parties the maximum opportunity to deal with the issues bilaterally. At the same time, the taxpayers will receive value in that the negotiators will not be required to ignore important DOL business for an extended period.

A.     Bargaining Teams.

(1) Members:

a. Each team will consist of up to ten (10) permanent members.

b. Each team will provide the other with a list of its permanent members prior to the start of negotiations.

c. Each team may designate a replacement member in the absence of a permanent member. Information on replacement members, if any, will be exchanged by the Parties prior to the start of each session.

(2) Either Party may at its expense call in experts or additional representatives for the purpose of providing specific information relative to matters that may be the subject of negotiations.

B.     Facilities and Services.

(1) DOL will provide suitable bargaining and caucus rooms in the Frances Perkins Building. The Union caucus room will include a conference area and be equipped with the normal office equipment, including but not limited to computers, printer, telephones, and copier.

(2) Research Materials: The Department will provide to the Union team a hard copy of the Department of Labor Manual Series, the Dept. of Labor Personnel Regulations, Title 5 of the U.S. Code, Code of Federal Regulations Volumes 5 and 29, and such others which may be necessary, along with appropriate updates, for use at negotiations.

C.     Negotiation Sessions.

(1) Schedule. The Parties will meet to open negotiations at 10:00 a.m. on the 10th workday following the exchange of proposals and will meet thereafter on the following schedule:

     


Footnote # 1 for 60 FLRA No. 109 - Authority's Decision

   Member Armendariz' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 109 - Authority's Decision

   As Proposals 2 and 3 involve similar issues and Authority precedent, we analyze them together. See AFGE, 38 FLRA 282, 284 (1990).


Footnote # 3 for 60 FLRA No. 109 - Authority's Decision

   In its response to the Agency's Statement of Position, the Union modified Proposal 2 by omitting the second, italicized and bracketed sentence of the proposal. See Union's Response at 7. The Union's modification does not appear to affect the Agency's position on the matter and the Agency does not contest the Union's modification in its Reply brief. Therefore, we review the proposal, as modified. See, e.g., Planners-Estimators, Progressmen & Schedulers Ass'n, Local 5, 41 FLRA 297, 298 (1991).


Footnote # 4 for 60 FLRA No. 109 - Authority's Decision

   As Proposal 5 and the disputed portion of Proposal 6 would afford bargaining unit employees identical rights, we will address them together. See AFGE, 38 FLRA at 284.


Footnote # 5 for 60 FLRA No. 109 - Authority's Decision

   Only the underlined part of Proposal 6 is in dispute.


Footnote # 6 for 60 FLRA No. 109 - Authority's Decision