[ v16 p369 ]
The decision of the Authority follows:
16 FLRA No. 60 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1979 Union and U.S. FOREST SERVICE, SAN DIMAS EQUIPMENT DEVELOPMENT CENTER Agency Case No. O-NG-533 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues as to the negotiability of four provisions of a local supplemental agreement, disapproved by the Agency pursuant to Article 9.7(b) of the parties' Master Agreement. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Provision 1 ARTICLE 30F MISCELLANEOUS 2. Information Distribution: Management agrees to route all memorandums, directives, newsletters or other documents received by them from other Government agencies, the Washington Office of the Forest Service, the Regional Office, the Office of Personnel Management, etc., that contain or could contain information which does or may effect career development, employment conditions, employment environment or employee benefits to the President of the Professional Association or his delegated representative. Management further agrees to inform the President of the Professional Association where the aforementioned information and documents are kept (filed) at the Equipment Development Center and grants access to these documents by the President of the Professional Association or his delegated representative when access is requested. (Footnote deleted.) Provision 1 of the local parties' agreement essentially requires management to transmit to the Union "all" documents which it receives that contain or "could" contain information that relates or "may" relate to the conditions of employment of unit employees and to provide Union representatives access to the place where those documents are kept. Thus, under the express terms of the provision, the only documents which management would be entitled to withhold from the Union are those which could not possibly contain any information that might relate to unit employees' conditions of employment. The Agency contends that the broad wording of the provision would require management to disclose information which under law, i.e., section 7114(b)(4)(C) of the Statute, it is not obligated to give to the Union. /2/ Section 7114(b)(4) of the Statute generally provides that an agency, pursuant to its obligation to negotiate in good faith under section 7114(a), must furnish to a union data which is necessary to enable the union to carry out its representational responsibilities to the extent not prohibited by law. See, e.g., American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Union Proposal 9) reversed as to other matters sub nom. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), and U.S. Customs Service Region VII, Los Angeles, California and National Treasury Employees Union, 10 FLRA 251 (1982). However, subsection (C) of that section exempts from the agency's obligation data which constitutes "guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining." /3/ Clearly, "guidance" and "advice" of this nature "could contain" information that "may" relate to the conditions of employment of unit employees within the meaning of Provision 1. The Union's claim that Provision 1 does not encompass such material is contrary to the broad language of the provision and is not persuasive. As written, the provision extends to information which management has no statutory obligation to provide to the Union, i.e., which is exempt from disclosure. In thus requiring management to furnish information which, under section 7114(b)(4)(C) of the Statute, is exempt from disclosure, Provision 1 is inconsistent with law /4/ and outside the duty to bargain. /5/ Cf. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508, 509-10 (1981) (proposal which does not incorporate statutory limitations on reimbursement for training expenses is outside the duty to bargain). Provision 2 ARTICLE 30G MISCELLANEOUS Technical Dissents Dissents to technical decisions, which may be submitted from time to time by Center employees, will be received and stored in the appropriate Center files for 20 years by Local management and made available to the employee. Inclusion in the dissent file shall be deemed constructive notice to the Director and to the employee's supervisor. The record indicates that the mission of the particular installation involved in this case is "to create new or substantially improved equipment, systems, materials, processes, techniques, and procedures that will be suitable to meet the objectives of advanced (f)orest management utilization . . . ." In essence, therefore, the work of the installation is technical research and testing and the work product consists of reports thereon which are submitted to higher levels of management within the Agency. Thus, in this context, Provision 2 would require the Agency to accept technical dissents, presumably by employees who worked on the projects involved, to the reports which are submitted to management and to retain those dissents on file with the report. The Agency contends that the policy regarding submission and retention of dissents to technical reports concern the "methods" by which it performs its work within the meaning of section 7106(b)(1). /6/ As already indicated, a significant aspect of the work of the installation involves employees reporting to management officials on the results of their research and testing projects, including any conclusions and recommendations. Thus, it is clear that the policy as to the submission and retention of technical dissents is part of the Agency's decision to adopt a particular way of reporting. Therefore, Provision 2 directly concerns the manner in which the Agency performs the function of preparing and communicating technical information. The decision to allow individual employees who have worked on a given project to submit separate dissenting views to the final report concerning that project represents only one of a number of ways in which the Agency could take into account differing opinions in compiling its technical reports. It is concluded, therefore, that requiring the Agency to provide for technical dissents as set forth in Provision 2 concerns the "methods" by which it performs work and, as such, is a matter about which it can elect to negotiate under section 7106(b)(1) of the Statute. See National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union Proposals IV-V); National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 7 FLRA 235 (1981) (Union Proposals 1-5). /7/ Finally, in the circumstances of this case, a question arises as to whether the Agency has elected to negotiate by virtue of the apparent agreement on the provision by the parties at the local level. In this regard, the record indicates that the local agreement is a supplement to a controlling agreement at a higher level within the Agency, which controlling agreement provides that local supplements are subject to the approval of the parties at the level of exclusive recognition. /8/ Thus, under the terms of the controlling agreement, the local agreement would not be final and binding until approved at the level of exclusive recognition. The Agency, therefore, having disapproved Provision 2 here in dispute pursuant to the controlling agreement, has not irrevocably elected to bargain on that provision. Consequently, Provision 2 is outside the duty to bargain. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Union Proposal 15). Provision 3 ARTICLE 30I MISCELLANEOUS Authorship Management recognizes that the individual professional employees at the Equipment Development Center in San Dimas are entitled to professional recognition for the professional work which they accomplish. For this reason, Management agrees: (a) That the Project Leader, or the Engineer and/or Forester who does the majority of the technical work on any project upon which is reported, shall be entitled to be the first author of that report; (b) that all earned academic titles, regardless of the field, as well as all professional registrations (i.e., professional engineer, registered land surveyor, professional forester, etc.) may be used at the employee's option on all official documents and correspondence. Provision 3 would essentially require the Agency to adopt a particular format for its technical reports, i.e., one which involved the designation of responsibility or authorship in a particular way. As indicated in consideration of Provision 2 above, the work of the local installation here involved is technical research and the preparation of reports thereon. A provision which directly concerns the way or manner in which work is to be done involves the methods and means of performing such work within the meaning of section 7106(b-(1). In this regard, the determination of the format in which reports will be prepared, i.e., for example, whether authorship will be designated and, if so, the form that it will take, directly concerns the way or manner in which the preparation of reports will be done. Thus, Provision 3 concerns the methods by which the Agency performs its function of technical reporting, a matter about which the Agency may elect, but is not obligated, to negotiate under section 7106(b)(1). Further, as to whether the Agency has, in the circumstances of this case, elected to negotiate on this matter, for the reasons set forth in consideration of Provision 2, the Agency has not so elected. Therefore, Provision 3 is outside the duty to bargain. /9/ Provision 4 Article 30B Miscellaneous 2. If lodging cannot be located which has ready and close access (walking distance not to exceed 1/4 mile) to reasonably priced and wholesome food facilities, management shall authorize use of official vehicles to transport the traveler to and from a restaurant of the traveler's choice. The traveler shall also be authorized, should an official vehicle not be available, reimbursement for personal vehicle mileage, care fare, cab fare, or other transportation expenses to travel to and from the traveler's place of lodging and a location of the traveler's choice for dining. The Agency contends, without controversion, that there is no duty to bargain at the local level on the subject matter of Provision 4 because Article 9.7.A of the parties' Master Agreement limits supplemental agreements to local working conditions and policies within the authority of the local manager. /10/ Specifically, the Agency contends that the subject matter of Provision 4 is not within the authority of the local manager to change because it is prescribed by a higher level regulation. /11/ The Union does not dispute the Agency's contention to the effect that, under the parties' Master Agreement, policies prescribed by higher level regulation are not subject to negotiation at the local level. It appears to argue only that Provision 4 would not change those policies and, thus, in effect that the Master Agreement's limitation on the scope of local negotiations is not applicable. Provision 4, on its face, would authorize the use of official vehicles, or reimbursement, for travel to and from restaurants "of the traveler's choice," under the circumstances where "reasonably priced and wholesome food facilities" are not available within walking distance of one-quarter mile. The higher level regulation relied on by the Agency restricts the use of official vehicles, or reimbursement, to travel to and from "the nearest available facility" providing "suitable meals." Thus, negotiation of Provision 4 would require the local manager to change the policy established in the higher level regulation in that it would authorize travel beyond what is permitted under the regulation, to restaurants of the traveler's choice, rather than to the nearest available facility. Therefore, contrary to the Union, Provision 4 is inconsistent with the regulation and the limitation on the obligation to bargain at the local level imposed by Article 9.7.A of the Master Agreement is applicable. Hence, since there is no duty to bargain between the parties at the local level under the Master Agreement, issues as to the negotiability of Provision 4 under the Statute are not appropriate for resolution by the Authority. The Authority therefore concludes that the negotiability issue raised as to Provision 4 in the instant appeal is moot. See National Association of Agriculture Employees, Branch 11 and Department of Agriculture, 14 FLRA No. 100 (1984). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Provisions 1-4 be, and it hereby is, dismissed. Issued, Washington, D.C., October 31, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7114(c)(4) of the Statute provides as follows: Sec. 7114. Representation rights and duties * * * * (c)(4) A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency. /2/ Section 7114(b)(4) of the Statute provides as follows: Sec. 7114. Representation rights and duties * * * * (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- * * * * (4) in the case of an agency, to furnish to the exclusive representative involve, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonable available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) /3/ While the Authority has not construed the scope of this exemption, it has been judicially interpreted to refer to the Office of Personnel Management's (OPM) advice on negotiating strategies and tactics, guidance on evaluating union proposals, and advice on negotiating strategy and tactics in defense of agency regulations under the compelling need requirements of the Statute. National Treasury Employees Union, et al. v. Office of Personnel Management, No. 79-0695 (D.D.C. July 9, 1979). (This case arose under the Freedom of Information Act (FOIA), 5 U.S.C. 552, but involved interpretation of section 7114(b)(4)(C) of the Statute pursuant to that provision of the FOIA, 5 U.S.C. 552(b)(3), which exempts from disclosure material which is specifically exempted by statute other than the FOIA.) See also National Treasury Employees Union, et al. v. U.S. Customs Service, et al., No. 79-1208 (D.D.C. Feb. 18, 1982). /4/ Section 7117(a)(1) of the Statute provides as follows: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule 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. /5/ Due to the result herein, it is unnecessary to consider the Agency's additional allegation that Provision 1 is inconsistent with the Privacy Act. /6/ Section 7106(b)(1) provides, in relevant part, as follows: Sec. 7106. Management rights * * * * (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency . . . on the technology, methods, and means of performing work(.) /7/ Due to the result herein, it is unnecessary to consider the Agency's additional allegation as to the nonnegotiability of Provision 2. /8/ According to the record, Article 9.7(b) of the controlling agreement reserves the right of the parties at the level of exclusive recognition to approve local supplemental agreements. Union Petition for Review at 1. Agency Statement of Position at 1. /9/ With regard to the Agency's additional contention as to section 7106(a)(2)(B), the designation of primary authorship does not concern an assignment of work. It is, at most, an acknowledgement of the performance of work already assigned. /10/ Article 9.7, Local Agreements, of the parties' Master Agreement provides: A. Local agreements subordinate to the master labor agreement may be negotiated between the local parties. The purpose of a local agreement shall be to cover local working conditions and policies within the authority of the local manager. /11/ The Agency cites Forest Service Manual (FSM) 6543.03, item 16.