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The decision of the Authority follows:
16 FLRA No. 14 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SOCIAL SECURITY LOCAL 3231, AFL-CIO Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency Case No. O-NG-619 DECISION AND ORDER ON NEGOTIABILITY ISSUES This petition for review comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises the question of the negotiability of two Union proposals. Upon careful consideration of the entire record, including the contentions of the parties, the Authority makes the following determinations. Union Proposal 1 A. The employer agrees to provide to each office in Area IV: 1. Adequate space for all employees assigned to a specific lunch period to store their lunches, prepare them, eat them and clean up afterwards. This includes space for the items listed in Section 2. The proposal requires adequate space for facilities and activities relating to an employee's lunch period. The only ground alleged by the Agency for its claim that Union Proposal 1 is nonnegotiable is that negotiation is barred by an Agency Regulation which allocates the space for lunchrooms pursuant to an agreement between the Agency and the General Services Administration (GSA). The basis for this allegation is unclear since the Agency did not submit a statement of position. If the Agency is arguing that its regulation bars negotiation of a conflicting union proposal under the criteria prescribed by section 2424.11 of the Authority's Rules and Regulations, the Agency bears the burden of demonstrating that a "compelling need" exists for that particular rule or regulation. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450 (1980). If it is the Agency's argument that its discretion to implement any agreement reached is limited, the Authority has held that an agency is obligated to negotiate to the extent of its discretion with respect to matters affecting conditions of employment. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA 423 (1981). In either event, the Agency has not demonstrated that the proposal is outside the duty to bargain. Union Proposal 2 A. The employer agrees to provide to each office in Area IV: 2. a. A refrigerator large enough to hold lunch and other spoilable items for the entire office staff. b. Stove and/or microwave oven with sufficient burners/space to provide cooking capability for all those assigned to the same lunch. c. Utensils so that all assigned to the same lunch can eat in the break room (plates, cups, glasses, knives, forks, spoons, pots) and similar items. d. Phone in the break room (pay or a separate line from the office phones) so that personal business can be conducted on the lunch break. e. Coffeemaker or dispensing machine. f. Sink with hot/cold running water and/or dishwasher large enough to clean up after lunches in the break room. Dish soap and clean up materials to be regularly supplied by the employer. The Agency alleges without any supporting argument that Union Proposal 2 is not authorized by section 201 of the Social Security Act. On its face, that section of the Social Security Act is concerned only with the creation of the "Old-Age Reserve Account" in the Treasury of the United States, presently the "Federal Old-Age and Survivors Insurance Trust Fund." /1/ Thus, the Agency is apparently asserting that the proposal is inconsistent with a provision of Federal law which authorizes and makes appropriations to the Agency. However, the Agency has failed to advert to any specific inconsistency between the proposal and section 201 of the Social Security Act. Accordingly, as the proposal has not been shown by the Agency to be inconsistent with Federal law which authorizes and appropriates funds to the Agency for necessary expenses, and no inconsistency is otherwise apparent, the Agency's claim to the contrary cannot be sustained. Cf. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (agency bears the burden of creating a record sufficient for the Authority to make a determination). The Agency further argues that parts of Union Proposal 2(f.) are barred from negotiation by an Agency regulation. The Agency's contention cannot be sustained for the reason stated above as to Union Proposal 1. Therefore, Union Proposal 2 is within the duty to bargain. 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 on Union Proposals 1 and 2. /2/ Issued, Washington, D.C., September 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 42 U.S.C. 401. /2/ In deciding that the proposals are within the duty to bargain, the Authority makes no judgment as to their merit.