[ v15 p461 ]
The decision of the Authority follows:
15 FLRA No. 96 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union and U.S. ENVIRONMENTAL PROTECTION AGENCY Agency Case No. O-NG-539 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of two Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 We (the union) demand that bargaining (on ground rules) begin forthwith. With respect to this proposal, the Agency argues that the obligation to bargain is limited to conditions of employment affecting bargaining unit employees, and that since ground rules do not fall within this category, the bargaining obligation does not attach. However, in agreement with the Union, the Authority concludes that ground rules do affect conditions of employment of bargaining unit employees. Consequently, they are within the Agency's obligation to bargain. /2/ In this regard, in Department of Defense Dependent Schools and Overseas Education Association, 14 FLRA No. 40 (1984) where the Authority found an obligation to bargain over ground rules, the Authority stated: In performing their mutual obligation to bargain in good faith, the parties ordinarily would need to make certain preliminary arrangements such as the scheduling of the time, place, length and agenda of the meetings. This is a necessary step in "meeting at reasonable times and convenient places" as required by section 7114 of the Statute. The fact that some parties mutually agree to set such preliminary arrangements apart and call them ground rules negotiations does not separate them from the collective bargaining process and the parties' mutual obligation to bargain in good faith. (Footnote omitted.) Further, in Department of Health and Human Services, Region VII, Kansas City, Missouri and National Treasury Employees Union, 14 FLRA No. 46 (1984) the Authority found that the agency therein had failed to meet its obligation to bargain in good faith when it refused the union's request to execute a written memorial of previously agreed-upon ground rules. Thus, based upon Department of Defense Dependents Schools and Department of Health and Human Services, Region VII, and the reasons stated therein, Union Proposal 1, herein, is within the Agency's duty to bargain. Union Proposal 2 We (the union) propose to have three negotiators. It appears from the record that, for the negotiations to which Union Proposal 2 would apply, the Agency has advised the Union that it intends to have a single negotiator. Under such circumstances, the Agency asserts, the Union's proposal conflicts with section 7131(a) of the Statute which "precludes a number of employee negotiators in excess of the number of management representatives." /3/ The Agency's view that "the number of employees representing an exclusive representative in collective bargaining is entirely dependent on the number of individuals representing the agency" misconstrues the Statute. The operative effect of section 7131(a) is to automatically entitle union negotiators to official time in any number which does not exceed the number designated by management. The purpose of section 7131(a) was to put exclusive representatives on a more equal footing with management, since, as Congress noted, management negotiators were almost without exception on official time when fulfilling that function. /4/ Thus, section 7131(a) does not limit the number of negotiators which a union can designate: it only limits the number who will be entitled to official time for negotiations. However, there is no indication that Congress intended to preclude negotiation of official time beyond that authorized as an entitlement in section 7131(a). To the contrary, section 7131(d) of the Statute expressly provides that, except for that already granted in the preceding subsections of section 7131, official time shall be granted by the agency for, inter alia, "any employee representing an exclusive representative" in "any amount" the parties agree to be "reasonable, necessary, and in the public interest." Hence, Union Proposal 2, seeking more Union negotiators than the number designated by management and also seeking official time for those additional negotiators is within the Agency's duty to bargain pursuant to section 7131(d) of the Statute. 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 concerning Union Proposals 1 and 2. /5/ Issued, Washington, D.C., August 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's claim that the petition is not properly before the Authority because no request was made by the Union for a written allegation from the Agency cannot be sustained. It is well established that an unsolicited written allegation may provide the basis for initiating an appeal to the Authority. See, e.g., International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). In this case, the Union filed its appeal of the Agency's unsolicited written allegation within the time limits established by section 2424.3 of the Authority's Rules and Regulations. /2/ While the Agency contends that Union Proposal 1 is not sufficiently specific and limited because the term "ground rules" is not further defined in the proposal, it is clear from the record that the parties are in essential agreement as to the definition of the term and the Agency was not prejudiced by the brevity of the proposal. /3/ The Agency also contends that Union Proposal 2 is insufficiently specific and delimited to permit a negotiability determination. However, the Agency interpreted the proposal as seeking both additional Union negotiators and official time for those negotiators, and based on its statement of position, and the Union's explanation of the proposal, it appears that the Agency's interpretation is congruent with the Union's intent in presenting the proposal. Hence, the full record provides a sufficient basis for a negotiability determination. /4/ See statement of Congressman CLAY of Missouri on the House floor during debate on the "Udall compromise." 124 CONG.REC. 29188 (1978). /5/ In finding Union Proposals 1 and 2 within the duty to bargain, the Authority makes no judgment as to their merits.