16:0047(14)NG - AFGE Social Security Local 3231 and HHS, SSA -- 1984 FLRAdec NG

 16 FLRA No. 14
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, SOCIAL SECURITY LOCAL 3231,
 AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
                                            Case No. O-NG-619
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    This petition for review comes before the Federal Labor Relations
 Authority pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises the question
 of the negotiability of two Union proposals.  Upon careful consideration
 of the entire record, including the contentions of the parties, the
 Authority makes the following determinations.
 
                             Union Proposal 1
 
    A. The employer agrees to provide to each office in Area IV:
 
          1.  Adequate space for all employees assigned to a specific
       lunch period to store their lunches, prepare them, eat them and
       clean up afterwards.  This includes space for the items listed in
       Section 2.
 
    The proposal requires adequate space for facilities and activities
 relating to an employee's lunch period.  The only ground alleged by the
 Agency for its claim that Union Proposal 1 is nonnegotiable is that
 negotiation is barred by an Agency Regulation which allocates the space
 for lunchrooms pursuant to an agreement between the Agency and the
 General Services Administration (GSA).  The basis for this allegation is
 unclear since the Agency did not submit a statement of position.  If the
 Agency is arguing that its regulation bars negotiation of a conflicting
 union proposal under the criteria prescribed by section 2424.11 of the
 Authority's Rules and Regulations, the Agency bears the burden of
 demonstrating that a "compelling need" exists for that particular rule
 or regulation.  American Federation of Government Employees, AFL-CIO,
 Local 1928 and Department of the Navy, Naval Air Development Center,
 Warminster, Pennsylvania, 2 FLRA 450 (1980).  If it is the Agency's
 argument that its discretion to implement any agreement reached is
 limited, the Authority has held that an agency is obligated to negotiate
 to the extent of its discretion with respect to matters affecting
 conditions of employment.  American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
 6 FLRA 423 (1981).  In either event, the Agency has not demonstrated
 that the proposal is outside the duty to bargain.
 
                             Union Proposal 2
 
    A. The employer agrees to provide to each office in Area IV:
 
          2.  a. A refrigerator large enough to hold lunch and other
       spoilable items for the entire office staff.
 
          b.  Stove and/or microwave oven with sufficient burners/space
       to provide cooking capability for all those assigned to the same
       lunch.
 
          c.  Utensils so that all assigned to the same lunch can eat in
       the break room (plates, cups, glasses, knives, forks, spoons,
       pots) and similar items.
 
          d.  Phone in the break room (pay or a separate line from the
       office phones) so that personal business can be conducted on the
       lunch break.
 
          e.  Coffeemaker or dispensing machine.
 
          f.  Sink with hot/cold running water and/or dishwasher large
       enough to clean up after lunches in the break room.  Dish soap and
       clean up materials to be regularly supplied by the employer.
 
    The Agency alleges without any supporting argument that Union
 Proposal 2 is not authorized by section 201 of the Social Security Act.
 On its face, that section of the Social Security Act is concerned only
 with the creation of the "Old-Age Reserve Account" in the Treasury of
 the United States, presently the "Federal Old-Age and Survivors
 Insurance Trust Fund." /1/ Thus, the Agency is apparently asserting that
 the proposal is inconsistent with a provision of Federal law which
 authorizes and makes appropriations to the Agency.  However, the Agency
 has failed to advert to any specific inconsistency between the proposal
 and section 201 of the Social Security Act.  Accordingly, as the
 proposal has not been shown by the Agency to be inconsistent with
 Federal law which authorizes and appropriates funds to the Agency for
 necessary expenses, and no inconsistency is otherwise apparent, the
 Agency's claim to the contrary cannot be sustained.  Cf. National
 Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C.
 Cir. 1982) (agency bears the burden of creating a record sufficient for
 the Authority to make a determination).
 
    The Agency further argues that parts of Union Proposal 2(f.) are
 barred from negotiation by an Agency regulation.  The Agency's
 contention cannot be sustained for the reason stated above as to Union
 Proposal 1.  Therefore, Union Proposal 2 is within the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on Union Proposals 1 and
 
 
 2.  /2/ 
 
 Issued, Washington, D.C., September 26, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 42 U.S.C. 401.
 
 
    /2/ In deciding that the proposals are within the duty to bargain,
 the Authority makes no judgment as to their merit.