15:0461(96)NG - AFGE and EPA -- 1984 FLRAdec NG

 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.