American Federation of Government Employees, Small Business Administration Council of Locals (Union) and Small Business Administration (Agency)

 6 FLRA No. 65
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 SMALL BUSINESS ADMINISTRATION COUNCIL OF LOCALS
 Union
 
 and
 
 SMALL BUSINESS ADMINISTRATION
 Agency
 
                                            Case No. O-NG-318
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
 AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) (5 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE
 NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.
 
    ARTICLE-- EMPLOYEE RIGHTS AND RESPONSIBILITIES
 
    EXCEPT AS PROVIDED BY LAW, GOVERNMENT-WIDE REGULATION OR THIS
 AGREEMENT, AN EMPLOYEE IS
 
    PRIMARILY ACCOUNTABLE FOR THE PERFORMANCE OF OFFICIAL DUTIES AND
 CONDUCT.  THE AGENCY AFFIRMS
 
    THE RIGHT OF AN EMPLOYEE TO CONDUCT HIS/HER PRIVATE LIFE IN SO FAR AS
 IT DOES NOT CONFLICT
 
    WITH LAW OR PERTINENT GOVERNMENT-WIDE REGULATION.
 
    EMPLOYEES WILL ADVISE THE AGENCY AND OBTAIN PRIOR WRITTEN
 CONFIRMATION FROM THE AGENCY THAT
 
    ANY PROPOSED OUTSIDE EMPLOYMENT DOES NOT PRESENT A POSSIBLE CONFLICT
 OF INTEREST.  THE AGENCY
 
    SHALL RENDER ITS DECISION TO THE EMPLOYEE AS SOON AS PRACTICABLE, BUT
 NOT MORE THAN 30 DAYS
 
    AFTER RECEIPT OF THE REQUEST.  WHEN THE AGENCY DECISION DENIES A
 REQUEST, IT WILL STATE THE
 
    REASONS THEREFOR.  WHEN A REQUEST IS APPROVED, IT SHOULD INCLUDE
 APPROPRIATE SAFEGUARDS
 
    DESIGNED TO PREVENT A POSSIBLE CONFLICT OF INTEREST.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER THE UNION
 PROPOSAL IS INCONSISTENT WITH GOVERNMENT-WIDE RULES OR REGULATIONS /1/
 AND/OR AGENCY RULES OR REGULATIONS FOR WHICH A COMPELLING NEED EXISTS,
 /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION PROPOSAL IS NOT INCONSISTENT WITH
 GOVERNMENT-WIDE RULES OR REGULATIONS RELIED ON BY THE AGENCY AND THE
 AGENCY'S RULES OR REGULATIONS ARE NOT APPLICABLE TO BAR NEGOTIATIONS ON
 THE UNION PROPOSAL UNDER SECTION 7117(A) OF THE STATUTE.  /3/
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE UNION PROPOSAL.
 
    REASONS:  THE AGENCY'S POSITION THAT THE UNION PROPOSAL IS OUTSIDE
 THE DUTY TO BARGAIN BECAUSE IT FAILS TO ADDRESS CERTAIN RESTRICTIONS ON
 OUTSIDE ACTIVITIES AND APPEARANCES OF CONFLICTS OF INTEREST CONTAINED IN
 GOVERNMENT-WIDE RULES OR REGULATIONS CANNOT BE SUSTAINED.  NOTHING IN
 THE LANGUAGE OF THE UNION PROPOSAL WOULD REQUIRE THAT THE PROPOSAL BE
 APPLIED IN A MANNER INCONSISTENT WITH ANY RULES OR REGULATIONS.  TO THE
 CONTRARY, THE FIRST SENTENCE OF THE UNION PROPOSAL ADDRESSES THE
 QUESTION OF CONSISTENCY WITH SUCH RULES OR REGULATIONS, STATING, IN
 RELEVANT PART, THAT THE PROPOSAL WOULD APPLY "(E)XCEPT AS PROVIDED BY
 LAW, GOVERNMENT-WIDE REGULATION OR THIS AGREEMENT. . . . " THUS, BY ITS
 EXPRESS LANGUAGE, THE PROPOSAL WOULD REQUIRE APPLICATION IN A MANNER
 CONSISTENT WITH LAW AND GOVERNMENT-WIDE RULES OR REGULATIONS.
 THEREFORE, ITS LANGUAGE DOES NOT, AS THE AGENCY CONTENDS, FAIL TO
 ADDRESS GOVERNMENT-WIDE RESTRICTIONS ON OUTSIDE ACTIVITIES AND
 APPEARANCES OF CONFLICTS OF INTEREST.  HENCE, THE PROPOSAL IS NOT
 INCONSISTENT WITH GOVERNMENT-WIDE RULES OR REGULATIONS.
 
    LIKEWISE, THERE IS NO BASIS ON WHICH TO SUSTAIN THE AGENCY'S POSITION
 THAT THE PROPOSAL IS BARRED FROM NEGOTIATIONS BECAUSE IT CONFLICTS WITH
 AGENCY RULES OR REGULATIONS FOR WHICH A COMPELLING NEED EXISTS UNDER
 SECTION 7117(A) OF THE STATUTE.  IN THIS CONNECTION, THE RECORD SHOWS
 THAT THE UNION REPRESENTS A CONSOLIDATED UNIT WITH RECOGNITION AT THE
 NATIONAL LEVEL OF THE AGENCY AND THAT IT REPRESENTS A MAJORITY OF THE
 EMPLOYEES OF THE AGENCY.  IN THESE CIRCUMSTANCES, IN THE ABSENCE OF A
 SHOWING THAT THE UNION DOES NOT, LIKEWISE, REPRESENT A MAJORITY OF THE
 EMPLOYEES TO WHOM THE CITED AGENCY RULES OR REGULATIONS ARE APPLICABLE,
 THOSE RULES OR REGULATIONS CANNOT CONSTITUTE A BAR TO NEGOTIATIONS ON
 THE UNION PROPOSAL UNDER THE PORTION OF SECTION 7117(A) OF THE STATUTE
 UNDERSCORED IN NOTE THREE, SUPRA.
 
    RELEVANT LEGISLATIVE HISTORY COMPELS ON THE SAME CONCLUSION.
 CONGRESSMAN FORD EXPLAINED, IN REMARKS ON THE FINAL VERSION OF THE BILL
 (H. R. 11280) WHICH WAS PASSED BY THE HOUSE (THE "UDALL SUBSTITUTE"),
 AND AS RELEVANT HEREIN SUBSEQUENTLY ENACTED AND SIGNED INTO LAW, THAT:
 
    THE COMPROMISE POSITION IN SECTION 7117 WAS ACCEPTED WITH THE
 UNDERSTANDING THAT THE
 
    PROVISION IN SUBSECTION (A)(3) WILL BE BROADLY CONSTRUED SUCH THAT
 THE COMPELLING NEED TEST
 
    WILL BE PERMITTED TO BE RAISED IN ONLY A LIMITED NUMBER OF CASES.  IF
 AN EXCLUSIVE
 
    REPRESENTATIVE REPRESENTS A UNIT INCLUDING AT LEAST A MAJORITY OF THE
 EMPLOYEES AFFECTED BY
 
    THE ISSUANCE OF A REGULATION, THE COMPELLING NEED TEST COULD NOT BE
 RAISED.  THIS WOULD
 
    PERMIT, FOR INSTANCE, OVERSEAS SCHOOLTEACHERS TO NEGOTIATE ALL AGENCY
 REGULATIONS (THAT AT
 
    LEAST SPECIFICALLY APPLY ONLY TO THEM), WITHOUT THE POSSIBILITY OF
 HAVING THE COMPELLING NEED
 
    TEST RAISED BY MANAGEMENT. . . .  /4/
 
    CONGRESSMAN UDALL EXPLAINED FURTHER IN THE SECTIONAL ANALYSIS
 ACCOMPANYING HIS SUBSTITUTE, THAT:
 
    THE NET EFFECT OF THE SUBSTITUTE'S SUBSECTION (A)(3) IS TO MAKE RULES
 OR REGULATIONS OF
 
    AGENCIES, OR OF PRIMARY NATIONAL SUBDIVISIONS OF AGENCIES, BARS TO
 NEGOTIATION, SUBJECT TO THE
 
    "COMPELLING NEED" TEST, EXCEPT IN CASES IN WHICH AN EXCLUSIVE
 REPRESENTATIVE REPRESENTS A
 
    BARGAINING UNIT WHICH INCLUDES A MAJORITY OF THE EMPLOYEES IN THE
 ISSUING AGENCY OR PRIMARY
 
    NATIONAL SUBDIVISION TO WHOM THE RULE OR REGULATION IS APPLICABLE.
 IN THOSE LATTER CASES, THE
 
    AGENCY OR PRIMARY NATIONAL
 
    SUBDIVISION RULE OR REGULATION IS NOT, FOR PURPOSES OF THAT UNIT, A
 BAR TO NEGOTIATIONS ON THE
 
    SUBJECT MATTER OF THE RULE OR REGULATION.
 
    IF, FOR EXAMPLE, THE DEPARTMENT OF THE TREASURY ISSUES A REGULATION
 WHICH APPLIES TO
 
    EMPLOYEES OF THE DEPARTMENT, AND AN EXCLUSIVE REPRESENTATIVE
 REPRESENTS A UNIT WHICH INCLUDES
 
    A MAJORITY OF THE EMPLOYEES TO WHOM THE REGULATION APPLIES, THE
 REGULATION WILL NOT BE A BAR
 
    TO NEGOTIATIONS FOR PURPOSES OF THAT UNIT. . . .  /5/
 
    FOR THE ABOVE STATED REASONS, THE AGENCY'S RULES OR REGULATIONS
 CANNOT BAR NEGOTIATIONS ON THE UNION PROPOSAL;  THEREFORE, IT IS
 UNNECESSARY TO RULE ON THE AGENCY'S CONTENTION THAT THERE IS A
 COMPELLING NEED FOR THE RULES OR REGULATIONS.
 
    ISSUED, WASHINGTON, D.C. AUGUST 5, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY CITES CERTAIN GOVERNMENT-WIDE RULES OR REGULATIONS NOW
 CONTAINED IN OFFICE OF PERSONNEL MANAGEMENT RULES OR REGULATIONS,
 EMPLOYEE RESPONSIBILITIES AND CONDUCT, 5 CFR 735.101 ET SEQ. (1981).
 
    /2/ THE AGENCY CITES ITS RULES OR REGULATIONS, STANDARDS OF CONDUCT,
 13 CFR 105.101 ET SEQ. (1980).
 
    /3/ SECTION 7117(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    (3) PARAGRAPH (2) OF THIS SUBSECTION APPLIES TO ANY RULE OR
 REGULATION ISSUED BY ANY AGENCY
 
    OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF SUCH AGENCY, UNLESS
 AN EXCLUSIVE
 
    REPRESENTATIVE REPRESENTS AN APPROPRIATE UNIT INCLUDING NOT LESS THAN
 A MAJORITY OF THE
 
    EMPLOYEES IN THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS
 THE CASE MAY BE, TO WHOM
 
    THE RULE OR REGULATION IS APPLICABLE.
 
    /4/ SEE 124 CONG.REC. H9651 (DAILY ED. SEPT. 13, 1978).
 
    /5/ SEE 124 CONG.REC. H9636 (DAILY ED. SEPT. 13, 1978).