American Federation of Government Employees, Local 32 (Union) and Office of Personnel Management, Washington, DC (Agency) 

 8 FLRA No. 87
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-329
 
                 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)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING UNION
 PROPOSAL:
 
                              UNION PROPOSAL
 
    THE AGENCY WILL TAKE WHATEVER ACTION IT CAN TO ENSURE THAT PRICES IN
 THE CAFETERIA DO NOT
 
    RISE FASTER THAN THE INCOME OF EMPLOYEES.  IN PARTICULAR, THE AGENCY
 WILL POST ON THE BULLETIN
 
    BOARD OUTSIDE THE CAFETERIA A STATEMENT OF THE PERCENTAGE INCREASE IN
 PRICES, MONTH BY MONTH
 
    AND CUMULATIVE FOR THE YEAR.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER THE STATUTE BECAUSE IT CONCERNS MATTERS OUTSIDE THE
 DISCRETION OF THE AGENCY OR IS INCONSISTENT WITH GOVERNMENT-WIDE RULES
 AND REGULATIONS, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION PROPOSAL CONCERNS MATTERS WITHIN THE
 AGENCY'S DISCRETION AND IS NOT INCONSISTENT WITH THE RULES AND
 REGULATIONS RELIED UPON BY THE AGENCY.  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.  /2/
 
    REASONS:  THE STATUTE ESTABLISHES A DUTY TO BARGAIN OVER MATTERS
 CONCERNING CONDITIONS OF EMPLOYMENT TO THE EXTENT THEY ARE NOT
 INCONSISTENT WITH FEDERAL LAW, GOVERNMENT-WIDE RULE OR REGULATION, OR
 AGENCY RULE OR REGULATION FOR WHICH A COMPELLING NEED EXISTS.  /3/
 
    NOTHING IN THE STATUTE LIMITS THIS DUTY TO MATTERS OVER WHICH AN
 AGENCY HAS TOTAL DISCRETION.  THUS, EXCEPT WHERE PROVIDED OTHERWISE BY
 LAW OR REGULATION, TO THE EXTENT THAT AN AGENCY HAS DISCRETION WITH
 RESPECT TO A MATTER AFFECTING THE CONDITIONS OF EMPLOYMENT OF ITS
 EMPLOYEES, THAT MATTER IS WITHIN THE DUTY TO BARGAIN.  NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
 DISTRICT, 3 FLRA 737 (1980).
 
    MORE PARTICULARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C.,
 6 FLRA NO. 76 (1981), THE AUTHORITY HELD A PROPOSAL CONCERNING THE
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES TO BE WITHIN THE
 DUTY TO BARGAIN, BECAUSE THE AGENCY FAILED TO SUPPORT ITS CLAIM BY
 REFERENCE TO LAW OR REGULATION THAT ITS DISCRETION TO IMPLEMENT THE
 PROPOSAL WAS LIMITED.  THE AUTHORITY THEN WENT ON TO ADD THAT THE LACK
 OF TOTAL DISCRETION TO IMPLEMENT ANY AGREEMENT REACHED IS NOT A BASIS
 FOR FINDING AN OTHERWISE NEGOTIABLE PROPOSAL TO BE OUTSIDE THE DUTY TO
 BARGAIN.  LACKING TOTAL DISCRETION, THE AGENCY'S DUTY TO BARGAIN WOULD
 EXTEND TO SUCH MATTERS AS ARE WITHIN ITS DISCRETION, INCLUDING
 APPROPRIATE REQUESTS TO THIRD PARTIES FOR APPROVAL TO IMPLEMENT THE
 AGREEMENT.  SEE ALSO AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
 EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
 (AND THE CASE CONSOLIDATED THEREWITH), 7 FLRA NO. 89 (1982).
 
    IN EACH OF THE CITED DECISIONS, THE AGENCY HAD FAILED TO DEMONSTRATE
 THAT IT DID NOT HAVE DISCRETION TO IMPLEMENT THE MATTERS PROPOSED FOR
 COLLECTIVE BARGAINING, AT LEAST IN CONJUNCTION WITH THE APPROVAL OF A
 THIRD PARTY SOUGHT AND RENDERED IN ACCORDANCE WITH APPLICABLE LAW AND
 REGULATIONS.  THESE DECISIONS THEREFORE WOULD NOT APPLY WHERE AN AGENCY
 DEMONSTRATED A TOTAL LACK OF DISCRETION TO IMPLEMENT A PROPOSAL, I.E.,
 WHERE THE PROPOSAL WOULD BE INCONSISTENT WITH LAW OR GOVERNMENT-WIDE
 RULE OR REGULATION, SUCH AS WHEN THE AGENCY'S REQUEST FOR APPROVAL,
 ITSELF, WOULD BE UNLAWFUL OR WHEN THE REQUEST WOULD BE FOR APPROVAL OF
 AN UNLAWFUL RESULT.
 
    SIMILARLY, THESE DECISIONS WOULD NOT APPLY TO PROPOSALS WHICH DO NOT
 CONCERN CONDITIONS OF EMPLOYMENT WITHIN THE MEANING OF THE STATUTE, AS,
 FOR EXAMPLE, MATTERS SPECIFICALLY PROVIDED FOR BY LAW OR WHICH WOULD
 REQUIRE MODIFICATION OF EXISTING LEGAL OR REGULATORY PROVISIONS.  SEE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
 GRAIN INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE,
 FEDERAL GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529 (1980),
 ENFORCED SUB NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS V. FEDERAL LABOR RELATIONS
 AUTHORITY, 653 F.2D 669 (D.C. CIR. 1981).  IN THIS CONNECTION, THE
 AUTHORITY HAS HELD A PROPOSAL CONCERNED WITH INFLUENCING LEGISLATIVE
 ACTION TO CHANGE CONDITIONS OF EMPLOYMENT TO BE OUTSIDE THE DUTY TO
 BARGAIN BECAUSE THE RELATIONSHIP BETWEEN POLITICAL EFFORTS TO INFLUENCE
 LEGISLATIVE ACTION, ON THE ONE HAND, AND CHANGES IN PERSONNEL POLICIES,
 PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS, ON THE OTHER HAND,
 IS, AT BEST, REMOTE AND SPECULATIVE.  NATIONAL ASSOCIATION OF AIR
 TRAFFIC SPECIALISTS AND DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION, 6 FLRA NO. 106 (1981) AT 6.  THIS ANALYSIS WOULD
 SIMILARLY APPLY TO PROPOSALS CONCERNED WITH INFLUENCING THE CONTENT OF
 GOVERNMENT-WIDE REGULATIONS TO AFFECT CONDITIONS OF EMPLOYMENT.
 
    IN LIGHT OF THE FOREGOING, THE QUESTION IN THE PRESENT CASE IS
 WHETHER, UNDER EXISTING LAW AND REGULATION, THE AGENCY HAS ANY
 DISCRETION WITH RESPECT TO THE MATTER PROPOSED TO BE BARGAINED.  THE
 PROPOSAL WOULD REQUIRE THE AGENCY TO "TAKE WHATEVER ACTION IT CAN" TO
 ENSURE THAT EMPLOYEE CAFETERIA PRICES (A CONDITION OF EMPLOYMENT) DO NOT
 RISE FASTER THAN EMPLOYEES' INCOME AND TO POST A MONTHLY STATEMENT
 LISTING THE PERCENTAGE OF INCREASE IN PRICES.  THE AGENCY CHARACTERIZES
 THE PROPOSAL AS REQUIRING IT TO BARGAIN OVER THE SETTING OF THE PRICES
 CHARGED IN THE CAFETERIA.  BASED ON THIS INTERPRETATION OF THE PROPOSAL
 IT ARGUES ESSENTIALLY THAT ONLY THE GENERAL SERVICES ADMINISTRATION
 (GSA), WHICH IS RESPONSIBLE UNDER REGULATION FOR BOTH NEGOTIATING AND
 ADMINISTERING THE CONTRACT FOR CAFETERIA SERVICES IN THE AGENCY'S OFFICE
 BUILDING, HAS AUTHORITY TO INFLUENCE PRICES AND SERVICES ESTABLISHED BY
 THE CONTRACTOR.
 
    THE AGENCY HAS MISINTERPRETED THE UNION'S PROPOSAL.  THE PROPOSAL BY
 ITS PLAIN LANGUAGE AND AS EXPLAINED BY THE UNION WOULD NOT REQUIRE
 NEGOTIATIONS ON THE SETTING OF PRICES CHARGED IN THE CAFETERIA.  RATHER,
 IT MERELY WOULD REQUIRE THE AGENCY TO TAKE WHAT ACTION IT CAN WITHIN ITS
 LAWFUL DISCRETION TO CONTROL THE RISE OF CAFETERIA PRICES, INCLUDING
 SPECIFICALLY THE POSTING OF CERTAIN NOTICES CONCERNING PRICE INCREASES.
 IN THIS REGARD, THE AGENCY CONCEDES THAT IT DOES HAVE DISCRETION "TO
 ATTEMPT TO INFLUENCE PRICES OR SERVICES THROUGH COMMENT TO GSA OR (THE
 CONTRACTOR).  THAT MANAGEMENT HAS DONE, IS WILLING TO DO, AND HAS SO
 ADVISED THE UNION." HENCE, UNDER THE RECORD THE AGENCY BY ITS OWN
 ADMISSION HAS SUFFICIENT DISCRETION TO CARRY OUT THE GENERAL REQUIREMENT
 OF THE PROPOSAL.  FURTHER, IT IS NOT PERSUASIVELY CONTENDED THAT THE
 AGENCY DOES NOT HAVE THE DISCRETION TO POST NOTICES OF PRICE INCREASES
 AS ALSO WOULD BE REQUIRED BY THE PROPOSAL.
 
    THE AUTHORITY CONCLUDES THAT THE PROPOSAL DOES NOT REQUIRE THE AGENCY
 TO ACT IN EXCESS OF ITS CONCEDED DISCRETION.  CONTRARY TO THE AGENCY'S
 ARGUMENT, THIS CONCLUSION IS SUPPORTED BY THE REGULATIONS RELIED UPON BY
 THE AGENCY WHICH, AS PREVIOUSLY QUOTED (NOTE 1, SUPRA), EXPLICITLY
 PROVIDE A MEANS FOR AN AGENCY TO SEEK TO INFLUENCE THE OPERATIONS OF
 CONCESSIONAIRES, INCLUDING PRICES CHARGED.  ACCORDINGLY, AS THE AGENCY
 HAS LAWFUL DISCRETION TO TAKE ACTION WITH RESPECT TO THE MATTER
 PROPOSED, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C. APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY SPECIFICALLY CITES 41 CFR 101-20.112-4 (1981) WHICH
 PROVIDES AS FOLLOWS:
 
    SEC. 101-20.112-4 SUPERVISION.
 
    (A) RESPONSIBILITY FOR SUPERVISION AND ADMINISTRATION OF ALL
 CONCESSIONS, EXCEPT AS PROVIDED IN SEC. 101-20.112-3, IS VESTED IN GSA.
 
    (B) IN THE CASE OF CONTRACTS AND PERMITS TO WHICH GSA IS A PARTY,
 OFFICIALS OF OCCUPANT AGENCIES SHALL NOT, UNLESS AUTHORIZED BY GSA,
 INSTRUCT CONCESSIONAIRES CONCERNING TYPES OF SERVICE, ARTICLES TO BE
 SOLD, PRICES, OR ANY OTHER PHASE OF OPERATIONS.  THEY SHALL COMMUNICATE
 THEIR WISHES AND REQUIREMENTS IN SUCH MATTERS AND SHALL REFER
 SUGGESTIONS AND CRITICISMS OF FEDERAL EMPLOYEES TO THE GSA BUILDINGS
 MANAGER OR TO THE APPROPRIATE REGIONAL OFFICIAL OF GSA WHO WILL TAKE
 SUCH ACTION IN CONSEQUENCE THEREOF AS MAY BE DEEMED APPROPRIATE.
 
    /2/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.
 
    /3/ AN AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE IS DERIVED FROM THE
 FOLLOWING SECTIONS:  SECTION 7114(A)(4) STATES THAT "(A)NY AGENCY AND
 ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE UNIT IN THE AGENCY,
 THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
 FAITH FOR THE PURPOSES OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT.
  . . . " SECTION 7114(B)(2) STATES THAT THE DUTY TO NEGOTIATE IN GOOD
 FAITH SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY
 CONDITION OF EMPLOYMENT." SECTION 7103(A)(14) DEFINES "CONDITIONS OF
 EMPLOYMENT" AS FOLLOWS
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER ESTABLISHED BY RULE, REGULATION, OR OTHERWISE,
 AFFECTING WORKING CONDITIONS, EXCEPT THAT SUCH TERM DOES NOT INCLUDE
 POLICIES, PRACTICES, AND MATTERS--
 
    (A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
 OF CHAPTER 73 OF THIS
 
    TITLE;
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION;  OR
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE(.)
 
    FINALLY, SECTION 7117(A)(1) DESCRIBES THE DUTY TO BARGAIN IN GOOD
 FAITH AS FOLLOWS:
 
    (T)HE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH ANY FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULES OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    RULE OR REGULATION ONLY IF THE RULE OR REGULATION IS NOT A
 GOVERNMENT-WIDE RULE OR REGULATION.