International Federation of Professional and Technical Engineers, Local 29, Goddard Engineers, Scientists and Technicians Association (Union) and National Aeronautic and Space Administration, Goddard Space, Flight Center, Greenbelt, Maryland (Agency)

[ v61 p382 ]

61 FLRA No. 70

INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 29
GODDARD ENGINEERS, SCIENTISTS
AND TECHNICIANS ASSOCIATION
(Union)

and

NATIONAL AERONAUTIC
AND SPACE ADMINISTRATION
GODDARD SPACE
FLIGHT CENTER
GREENBELT, MARYLAND
(Agency)

0-NG-2814

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

November 15, 2005

_____

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

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 two proposals relating to the Agency's alternative dispute resolution (ADR) process. The Agency filed a statement of position and a reply and the Union filed a response.

      For the reasons set forth below, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.      Proposals [n1] 

Proposal 5.0
Employee Issues/Problems and ADR
In the case of a BU employee having a grievance against Supervisor/Management, then the use of the ADR Process shall be the choice of the employee only, mandatory for supervisors.
Proposal 12.2 [n2] 
Metrics
[The Union] will be provided with exactly the same metrics information provided to management, and any additional information provided to management or [the Labor Relations Office] will also be provided to [the Union].

III.     Meaning of the Proposals

      The parties agree that Proposal 5.0 means that if a bargaining unit employee has a grievance against a supervisor or management, then the employee will choose whether the ADR process will be used. The parties also agree that supervisors must participate in the ADR process if the employee selects that process.

      The parties agree that Proposal 12.2 means that that the Union will be provided the same metrics information provided to management about the work place ADR program and that the Union will also receive any additional information, written or oral, provided to management or the Labor Relations Office. [n3]  The parties further agree that the proposal requires that the requested information be provided to the Union by the ADR manager, Ms. Cleaver, and that it include anything that affects the ADR process, such as information on training and seminars on ADR, management's internal communication on the success of the ADR program and copies of the ADR program staffs' performance appraisals and progress reviews. [ v61 p383 ]

IV.     Preliminary Matters

A.      The Union's response was not properly filed.

      Section 2429.24(e) of the Authority's Regulations requires that a response to an agency's statement of position be filed "in person, by commercial delivery, by first-class mail, or by certified mail." On April 22, 2005, the Union filed its response to the Agency's statement of position by facsimile (fax). Accordingly, the Authority issued a Show Cause Order (Order) to the Union requiring it to demonstrate why the Authority should consider the response. The Order also required that the Union's response to the Order be filed with the Authority by May 24, 2005. On May 25, 2005, the Union filed its response to the Order and a second response to the Agency's statement of position. In its response to the Order, the Union stated that its failure to timely respond to the Agency's statement of position "was due to a misunderstanding . . . of the [Authority's filing] requirements" and it requested that the Authority accept the May 25 response. Union's Response at 1.

      It is well established that parties filing documents with the Authority are "responsible for being knowledgeable" of the statutory and regulatory filing requirements. AFGE, Local 2065, 50 FLRA 538, 539-40 (1995). Thus, as responses cannot be filed by fax, the Union's April 22 response to the Agency's statement of position was not properly filed with the Authority. In addition, the Union's response to the Authority's Show Cause Order and attached second response to the statement of position was untimely filed. Accordingly, we will not consider the April 22 response or the May 25 response to the Order with attached second response. In addition, § 2424.26(a) of the Authority's Regulations provides that the "purpose of the agency's reply is to [respond to] any facts or arguments made for the first time in the [union's] response." Because we are not considering either of the Union's responses, we also find that there is no reason for the Authority to consider the Agency's reply to the May 25 response. [n4]  Cf. Marine Engineers' Beneficial Ass'n, Dist. No. 1 - PCD, 60 FLRA 828, 829 (2005) (Chairman Cabaniss dissenting; separate opinion of Member Pope) (Authority considered arguments in union's response to agency's untimely filed statement of position that were responsive to arguments made by the agency in its allegation of nonnegotiability).

B.      The Union's hearing request is denied.

      Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact . . . ." Here, the Union requests a hearing to "explore the full legal merits of the ADR [p]rogram and its implementation . . . ." Petition for Review at 5. Nothing in either the Union's claim or the record demonstrates that there are any disputed issues of material fact for the Authority to consider at a hearing. Consequently, we deny the Union's request for a hearing. See, e.g., Prof'l Airways Systems Specialists, 59 FLRA 25, 25 n.2 (2003).

V.      Positions of the Parties

A.      Agency

      The Agency argues that Proposal 5.0 is contrary to the Alternative Dispute Resolution Act, 5 U.S.C. § 571, et. seq. (ADRA) and NASA policy directive (NPD) 2010.2B because it requires supervisors, without exception, to participate in the ADR process if a bargaining unit employee elects to pursue ADR. [n5]  In this regard, the Agency asserts that under § 572(b) of ADRA and § 1(g) of NPD 2010.2B, it is required to consider not using ADR in certain circumstances. The Agency also asserts that by mandating participation by management in the ADR process, the proposal violates § 572 (a) and (c) of ADRA, which contains the principle that "voluntary participation is a cornerstone of the ADR process." Statement of Position at 9-10.

      The Agency also argues that by requiring supervisors to participate in the ADR process if the employee selects that process, Proposal 5.0 interferes with its right to assign work under § 7106(a)(2)(B) of the Statute because it concerns the assignment of specific duties to particular management officials. In this regard, the Agency contends that the negotiated grievance procedure provides that with respect to Step 1, an employee with a grievance shall first discuss the matter with either the first-line supervisor or, in certain cases, the staff office manager having the requisite authority. The Agency asserts that by applying the requirement of Proposal 5.0 to Step 1 of the negotiated grievance procedure, either the first-line supervisor or the staff office manager will be required to participate in ADR whenever [ v61 p384 ] requested by the bargaining unit member. The Agency further contends that by applying the requirement of Proposal 5.0 to Step 2 and Step 3 of the grievance procedure, either the bargaining unit employees' Director or the Center Director/designee would be required to participate in ADR if requested.

      The Agency contends that Proposal 12.2 also interferes with its right to assign work because it concerns the assignment of specific duties to a particular management official. In this regard, the Agency maintains that Proposal 12.2 requires the ADR manager, Ms. Cleaver, to provide the Union with any information related to the ADR program, including that information provided to management by the ADR manager. The Agency asserts that the requested information is broad in scope and that in order for the ADR manager to meet this requirement, she would need to maintain a continuous log of her verbal and written communications to management.

      The Agency further contends that the Union has a statutory right under § 7114(b) to seek relevant and necessary information that is limited to working conditions that affect the bargaining unit. The Agency asserts, however, that the requirement of Proposal 12.2 for the Agency to provide the Union with "anything that affects the ADR process" includes information concerning non-bargaining unit employees. Statement of Position at 20. Thus, according to the Agency, the proposal expands the scope of information available under § 7114(b). Finally, the Agency argues that Proposal 12.2 is contrary to § 574 of ADRA and § 3.104-4 of the Federal Acquisition Regulation because it requires the ADR Program Manager to communicate information that is confidential.

B.      Union

      In its petition for review, the Union stated that the intent of Proposal 5.0 is to require supervisors to participate in the ADR process. With regard to Proposal 12.2, the Union stated there "is a greater likelihood of agreement on results" if both parties are reviewing the ADR process based on the same information. Petition for Review at 4.

VI.     Analysis and Conclusions

      The Authority's regulations provide that "failure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion." 5 C.F.R.§ 2424.32(c)(ii)(2) (emphasis added). In applying this provision, the Authority has found it "appropriate" to find that a party's lack of response constituted a concession in situations where the record was silent with respect to that party's position and Authority precedent supported the opposing party's argument. See e.g., NATCA, AFL-CIO, 61 FLRA 336, 339 (2005); NTEU, 60 FLRA 219, 220-22 (2004) (citing AFGE, Local 1858, 56 FLRA 1115, 1117 (2001)).

      Here, the Agency has made the uncontested claim that the proposals are outside the duty to bargain because Proposal 5.0 is contrary to ADRA and Proposal 12.2 interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute. In this regard, the Agency made these claims in its statement of position and the Union did not file a response that comports with the Authority's Regulations. Moreover, there is nothing in the record indicating the Union's position with respect to either of the Agency's claims.

      Further, Authority precedent supports the Agency's argument. With regard to Proposal 5.0, § 572(b) of ADRA provides that "[a]n agency shall consider not using a dispute resolution proceeding" in certain circumstances, such as when an authoritative resolution of the matter is required for precedential value and such a proceeding is not likely to be accepted generally as an authoritative precedent or the matter significantly affects persons or organizations who are not parties to the proceeding. The term "shall" makes the direction to an agency to consider not using ADR mandatory in nature. See United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 360, 370 (1998), petition denied, NAGE v. FLRA, 179 F.3d 946 (D.C. Cir. 1999); Black's Law Dictionary 1375 (6th ed. 1991) ("As used in statutes, contracts, or the like, [the word shall] is generally imperative or mandatory."). On its face, therefore, § 572(b) requires an agency to consider not using ADR if any of the circumstances set forth in the section are present.

      As discussed above, Proposal 5.0 requires that supervisors participate in the ADR process if the employee selects that process. By requiring supervisors, without exception, to participate in the ADR process if that process is chosen by the employee, the proposal precludes the Agency from meaningfully considering not using ADR if any of the circumstances set forth in § 572(b) are present. As a result, we find that Proposal 5.0 is contrary to § 572(b) of ADRA and, therefore, is outside the duty to bargain. [n6] 

      With regard to Proposal 12.2, it is well established that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular [ v61 p385 ] duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See AFGE, Local 3529, 56 FLRA 1049, 1050 (2001); AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). In particular, the Authority has found that proposals or provisions that concern the assignment of specific duties to particular management officials affect an agency's right to assign work. See AFGE, Local 3529, 56 FLRA at 1051.

      Proposal 12.2 specifically requires the ADR manager -- identified by the parties as Ms. Cleaver -- to provide the Union with any information related to the ADR program, including copies of the ADR program staffs' performance appraisals and progress reviews and information provided to management by the ADR manager. See Record at 3. Moreover, the Agency contends, without dispute, that this task would also require the ADR manager to maintain a continuous log of her verbal and written communications to management. As a result, Proposal 12.2 would require management to assign particular duties to a particular management official and would require the ADR manager to perform certain specific acts. Therefore, we find that Proposal 12.2 affects management's right to assign work. See AFSCME, Local 2830, 60 FLRA 671, 673 (2005). Because the Union did not raise either a § 7106(b)(2) or (3) claim in its petition for review, we also find that Proposal 12.2 is outside the duty to bargain. [n7] 

VII.      Order

      The petition for review is dismissed.


Appendix

Section 16.05 of the parties' agreement provides, in pertinent part, that:

Any formal complaint or grievance between an employee and [m]anagement shall be processed in accordance with the following steps:
STEP 1: An employee with a complaint or grievance shall first discuss the matter with his/her immediate supervisor and attempt to resolve the problem. If the grievance concerns a matter beyond the control of the supervisor, the employee shall be referred to the [m]anagement official or staff office having authority to deal with the grievance.
STEP 2: If a satisfactory settlement of the complaint has not been reached in STEP 1, . . . the Director of, or his/ her designee, shall meet with the employee to discuss the grievance.
STEP 3: If . . . STEP 2 . . . does not resolve the grievance, . . . [t]he employee . . . shall be given the opportunity to make a personal presentation of the grievance to the Center Director or his/her designee.

Agency's Statement of Position, Exhibit 5 at 2-3.

The Alternative Dispute Resolution Act, 5 U.S.C. §§ 572 and 574 provide, in pertinent part, that:

572. General Authority
(a) An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding.
(b) An agency shall consider not using a dispute resolution proceeding if--
(1)     a definitive or authoritative resolution of the matter is required for precedential value, and
         such a proceeding is not likely to be accepted generally as an authoritative precedent;
(2)     the matter involves . . . significant questions . . . that require additional procedures before
         a final resolution may be made, and such a proceeding would not likely serve to
         develop  a recommended policy for the agency;
(3)     maintaining established policies is of special importance . . . and such a proceeding
         would not likely reach consistent results among individual decisions;
(4)     the matter significantly affects persons or organizations who are not parties to the
         proceeding;
(5)     a full public record of the proceeding is important, and a dispute resolution proceeding
          cannot provide such a record; and
(6)     the agency must maintain continuing jurisdiction over the matter with authority to alter the
         disposition of the matter in the light of changed circumstances, and a dispute resolution
         procedure [ v61 p386 ] would interfere with the agency's fulfilling that requirement.
(c) Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques.

574.     Confidentiality

. . . .
(b) A party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any dispute resolution communication, unless--
(1) the communication was prepared by the party seeking disclosure;
(2) all parties to the dispute resolution proceeding consent in writing;
(3) the dispute resolution communication has already been made public;
(4) the dispute resolution communication is required by statute to be made public;
(5) a court determines that such testimony or disclosure is necessary to--
        (A) prevent a manifest injustice;
        (B) help establish a violation of law; or
        (C) prevent harm to the public health and safety, of sufficient magnitude in the particular 
        case to outweigh the integrity of dispute resolution proceedings in general by reducing the
        confidence of parties in future cases that their communications will remain confidential;
(6) the dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or
(7) the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding.

NPD 2010.2B § 1(g) provides, in pertinent part, that:

ADR may not be appropriate under the following circumstances:
(1)     A definitive or authoritative resolution of the matter is required for precedential value, and ADR is not
          likely to be accepted generally as an authoritative precedent;
(2)     The matter involves . . . significant questions . . . that require additional procedures before a final
          resolution may be made, and ADR would not likely serve to develop a recommended policy for the
          Agency;
(3)     Maintaining established policies is of special importance, consistency among individual decisions is
          important, and ADR would not likely reach consistent results among individual decisions;
(4)     The matter significantly affects persons or organizations that cannot be parties to the ADR
          proceeding;
(5)     A full public record of the proceeding is important, and ADR cannot provide such a record; or
(6)     The Agency must maintain continuing jurisdiction over the matter with authority to alter the disposition
          of the matter in the light of changed circumstances, and ADR would interfere with the Agency's
          fulfilling that requirement.

Agency's Statement of Position, Exhibit 4 at 2-3.

5 U.S.C. § 7114(b)(4) provides, in pertinent part, that:

in the case of an agency, to furnish to the [union] involved, . . . upon request and, to the extent not prohibited by law," data--
(A)     which is normally maintained by the agency in the regular course of business;
(B)     which is reasonably available and necessary for full and proper discussion,
          understanding, and negotiation of subjects within the scope of bargaining; and
(C)     which does not constitute guidance, advice, counsel or training . . . .

Federal Acquisition Regulation, 48 C.F.R. § 3.104-4(b) provides, in pertinent part, that:

[c]ontractor bid or proposal information and source selection information must be protected from unauthorized disclosure . . . .



Footnote # 1 for 61 FLRA No. 70 - Authority's Decision

   The parties agreed at the post-petition conference that Proposals 5.0 and 12.2 should be considered separately. The Union did not request severance of any of the components of the individual proposals. See Record of Post-Petition Conference (Record) at 4.


Footnote # 2 for 61 FLRA No. 70 - Authority's Decision

   The wording of Proposal 12.2 is as modified during the Post-Petition Conference. See Record at 2.


Footnote # 3 for 61 FLRA No. 70 - Authority's Decision

   "Metrics" means data on cases that go through the ADR process, such as gender, age, nature of the complaint, and ethnicity of the grievant. Record at 2-3.


Footnote # 4 for 61 FLRA No. 70 - Authority's Decision

   The Union also submitted a response to the Agency's reply. Because we do not consider the Agency's reply, there is no reason to consider the Union's response. Further, the Authority's regulations do not provide for such a response, see 5 C.F.R. § 2424.24- 2424.26, and the Union has not made a written request showing extraordinary circumstances for submitting an unauthorized filing. See 5 C.F.R. § 2424.27. Therefore, we will not consider the Union's response to the Agency's reply.


Footnote # 5 for 61 FLRA No. 70 - Authority's Decision

   Relevant provisions of the parties' agreement, laws, and Agency regulation are set forth in the appendix.


Footnote # 6 for 61 FLRA No. 70 - Authority's De