[ v15 p717 ]
The decision of the Authority follows:
15 FLRA No. 141 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCALS 2910 and 2477 Union and LIBRARY OF CONGRESS Agency Case No. O-NG-692 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 the issue of the negotiability of the following Union proposal: The library agrees to post 10% of its annual vacancies as permanent part-time positions in an attempt to reach the goal of 8% permanent part-time positions. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ The Union's proposal requires the Agency to post 10% of its annual vacancies as permanent part-time positions in an attempt to reach the goal of 8% permanent part-time positions. The Agency contends that the proposal requires selection of part-time employees which it contends violates section 7106(b)(1) of the Statute and the Federal Employees Part-time Career Employment Act (P.L. 95-437), 5 U.S.C. 3402(a)(1)(c). The Union indicates that the language of the proposal is clear and only requires the Agency to give consideration to filling its vacancies on a part-time basis. In this regard, the proposal merely requires posting of a certain percentage of vacancies, leaving to the Agency the determination of which and how many such vacancies will be filled with employees who work on a part-time basis in tours of duty set by the Agency. Furthermore, the Agency would retain full discretion to determine the number of part-time vacancies which would be posted to any organizational subdivision, work project or tour of duty. Thus, the proposal is materially identical in effect to the first sentence of the proposal in National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281 (1979). In that case, the Authority found that the first part of the proposal would not prevent the agency from acting at all to exercise its statutory right to fill or not fill vacant positions, but only would establish a procedural requirement whereby a certain number of vacant positions would in the first instance be announced as upward mobility positions. Similarly, the proposal herein requires the Agency only to announce a vacancy and to give consideration to filling the vacancy on a part-time basis. It would not prevent management from establishing the tours of duty and positions and consequent number of employees it deems necessary to achieve the mission and goals of the Agency and its organizational units, contrary to the Agency's argument. Hence, the proposal would not conflict with management's rights under section 7106(b)(1) but, rather, is within the duty to bargain under section 7106(b)(2) of the Statute. The Agency additionally contends that the proposal is inconsistent with the Federal Employees Part-time Career Employment Act of 1978 because Congress intended that the number of part-time opportunities created would be established by an annual goal set at the discretion of the agency. However, the Authority has consistently held that an agency has a duty to bargain over matters affecting the conditions of employment of the bargaining unit to the extent such matters are within an agency's discretion. See American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 31 (1983); American Federation of Government Employees, AFL-CIO, Local 2578 and General Services Administration, National Archives and Records Service, Washington, D.C., 3 FLRA 604 (1980). Furthermore, the proposal merely sets forth a goal for the number of part-time positions, but does not require the Agency to take or refrain from taking any specific action towards the achievement of that goal. The Agency additionally argues that the proposal is not limited only to bargaining unit positions and is thus outside the duty to bargain. Neither the express language of the proposal nor the Union's stated intent requires the proposal to be applicable to non-bargaining unit employees. A proposal is presumed to be intended to apply only to bargaining unit employees in the absence of language to the contrary, unless the record indicates otherwise. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982) (Proposal 1). 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 the Union proposal. /2/ Issued, Washington, D.C., August 28, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's contention that the Union's petition for review should be dismissed for failure to comply with the requirement of section 2424.4(a)(2) of the Authority's Rules and Regulations that the Union furnish an explicit statement of the meaning of the proposal cannot be sustained. Five days after the petition was filed, the Union submitted a clarifying letter stating that the proposal "is clear on its face" and "does not require that those positions which are posted as part-time actually must be filled." The Authority finds that this submission corrected the deficiency and adopts the Union's reasonable interpretation as consistent with the clear meaning of the proposal. Therefore, the Union's petition for review is properly before the Authority. /2/ In finding this proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.