17:0674(98)NG - AFGE Local 12 and Labor -- 1985 FLRAdec NG
[ v17 p674 ]
The decision of the Authority follows:
17 FLRA No. 98 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO Union and DEPARTMENT OF LABOR Agency Case No. 0-NG-776 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 raises issues concerning the negotiability of six Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 1a. Vacancies under the reorganization will be limited to DIT (Directorate of Information Technology) employees and be filled from the top down to maximize the number of promotions in DIT. 1d. In addition to the co-op program, Management will provide four upward mobility positions for employees in DIT. In its Reply Brief, the Union asserts that Union Proposal 1a was "in-artfully drafted" and that it is merely intended to limit advertising of unit vacancies to the bargaining unit. Therefore, in the Union's view, the proposal is negotiable because it does not require that vacancies be filled by unit employees. However, the Authority has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). In this connection, the proposal makes no reference to vacancy announcements. Moreover, in its negotiability determination and in its Statement of Position, the Agency based its position on its understanding that the proposal required the filling of bargaining unit vacancies with bargaining unit employees. That interpretation was not "corrected" by the Union. The Agency's interpretation is therefore deemed consistent with the language of the proposal and is adopted for the purpose of this decision. Hence, Union Proposal 1a is to the same effect as those proposals the Authority has found nonnegotiable which sought to limit the selections for bargaining unit vacancies to bargaining unit employees. The Authority has consistently held with respect to such proposals that they are inconsistent with management's right, pursuant to section 7106(a)(2)(C) of the Statute, to select from among properly ranked and certified candidates or from any other appropriate source. See, e.g., National Federation of Federal Employees Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981) (Union Proposals III and IV). Consequently, Union Proposal 1a is also outside the duty to bargain. Union Proposal 1d, in requiring that a specific number of positions be set aside as "upward mobility positions," is to the same effect as the proposal which was before the Authority in National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281 (1979). The Authority held that the portion of the disputed proposal requiring that a specified percentage of agency vacancies be filled as upward mobility positions was inconsistent with management's rights, pursuant to section 7106(a)(2)(C) of the Statute, to select candidates and to fill positions. Hence, based on Internal Revenue Service, and the reasons stated therein, Union Proposal 1d is outside the duty to bargain. Union Proposal 2 Performance Appraisal. The reorganization will not be implemented until all employees have developed their performance standards based on their P.D. (position description) and signed them as accepted. /2/ The Union, in its Reply Brief, asserts that Proposal 2 is not intended "to alter the contractual process for establishing (performance) standards" prevailing prior to the bargaining unit's reorganization and relocation which occasioned the instant negotiations. However, based on the record, it appears that the parties' subsisting negotiated agreement provides for consultation between supervisor and employee concerning revised performance standards and permits an employee 10 working days to examine and consider the revised standards. The existing agreement does not require employee development of the standards nor employee acceptance of them as a condition to their implementation, as does the language of disputed Proposal 2. /3/ On its face then, and contrary to the Union's statement of intent, Union Proposal 2 is to the same effect as Union Proposal 1 in National Association of Government Employees, Local R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss, Texas, 9 FLRA 1033 (1982). The Authority found that proposal, which would have conditioned the abolishing of positions and redistributing of duties to other employees upon the approval by the personnel receiving the new work of revised critical elements and performance standards, to be inconsistent with management's rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute, to direct employees and to assign work. Consequently, based on U.S. Army Air Defense Center and Fort Bliss, and the reasons and cases cited therein, Union Proposal 2, herein, is outside the duty to bargain. Union Proposal 3 QUALITY CIRCLES. Management and the Union will establish a joint study committee to explore the feasibility of Quality Circles in the DIT program, to facilitate the introduction of "modern systems." The Union asserts that its Proposal 3 responds to management's announced plan to introduce new technology, or "modern systems" into the bargaining unit. Further, the Union states: The proposal is intended to have the parties establish a committee to explore the feasibility of quality circles in (the bargaining unit). The proposal does not require that the agency negotiate at all, only that the agency discuss the possibility of quality circles with the union through an ad hoc committee structure. /4/ (Footnote added.) Thus, the Union characterizes this proposal as a procedure, within the meaning of section 7106(b)(2), to be followed by management in exercising its reserved authority under the Statute. In agreement with the Union, and contrary to the Agency's position, the Authority finds that the proposal would not directly concern the technology, methods, and means of performing work, matters which may only be negotiated at management's election pursuant to section 7106(b)(1) of the Statute. That is, it does not appear on its face, nor does the Union's explanation compel the conclusion that the proposal would in any way impede the introduction by management of "modern systems." Rather, this proposal would only obligate the Agency to discuss with the Union the possibility of using quality circles to serve as a forum for evaluating employee concerns, suggestions, etc., concerning the introduction of "modern systems." In this regard, the disputed proposal is to the same effect as the Union Proposal before the Authority in American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984) which sought establishment of a joint labor-management committee to serve as a forum for evaluating employee training needs and for formulating programs to meet those needs, without obligating the agency to bargain on the specific content of training. The Authority concluded that the proposal was not inconsistent with any substantive agency rights, but, rather, constituted a negotiable procedure to be followed by management in exercising its substantive rights, within the meaning of section 7106(b)(2) of the Statute. Thus, based on U.S. Army Adjutant General Publication Center, and the reasons and cases cited therein, Union Proposal 3, herein, which also constitutes a procedure to be followed by management in exercising its rights, is within the Agency's obligation to bargain. /5/ Union Proposal 4 COMPETITIVE LEVELS. Competitive levels will be structured to more clearly support the regulations, including (5 CFR) 351.403 "all positions in a competitive area and in the same grade or occupational level which are sufficiently alike in qualification requirements, duties, responsibilities, pay schedules and working conditions so that an agency readily may assign the incumbent of any one position to any of the other positions without . . . unduly interrupting the work program." Management analyst and Computer Assistant (positions) will remain in the same competitive level they were in under the old organization. The Agency objects to the first paragraph of Union Proposal 4 on the basis that "the subject matter is already covered under governing regulations(.)" Furthermore, the Agency contends, "If (the Union) disagrees with the administration of the regulations by (the Agency) it can grieve, but it cannot renegotiate these regulations." /6/ It does not appear that the Agency's use of the term "renegotiate" is intended to imply that the first paragraph of the proposal is inconsistent with the regulations themselves. Rather, it appears that the Agency opposes incorporation of the regulatory requirements in the agreement. Indeed, comparison of this portion of the proposal, especially the part enclosed by quotation marks, with the cited Office of Personnel Management (OPM) regulations, as printed in the latest edition of the CFR (1984 Supp.), reveals that, while the part of the proposal in quotes is not quite an exact reiteration of the regulations, the minor variations in the proposal do not render it inconsistent with the regulations. /7/ In these circumstances, the Agency has raised no viable objection to the first paragraph. Additionally, it is noted that the subject matter of the first paragraph is not expressly excluded by section 7121 of the Statute from coverage of a negotiated grievance procedure and is therefore a matter appropriate for collective bargaining. See, e.g., National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Union Proposals II and III); and Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Union Proposal 1). /8/ The second paragraph of Union Proposal 4 would, in effect, require employees in the listed occupations to remain in the same competitive level for the life of the parties' agreement. The proposed requirement reflects the Union's belief that "the two types of positions belong in the same competitive level." /9/ In this regard, the Authority notes that a position's competitive level is determined by, inter alia, duties, responsibilities and working conditions and that to be in the same competitive level, positions must be "sufficiently alike" so that "an agency readily may assign the incumbent of any one position to any of the other positions without changing the terms of his appointment or unduly interrupting the work program." See n.7. Thus, the proposal's second paragraph, read in conjunction with the OPM regulations defining "competitive levels" imposes a limitation on the Agency's authority, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. That is, the Agency would either be constrained to maintain duties, responsibilities and working conditions for these occupations as they existed under the old organization or to effect only such changes in these factors as would allow assignment, in conformity with the regulations, of the two occupations to the same competitive level. In limiting management's discretion in making work assignments to employees in the listed occupations, the second paragraph of Union Proposal 4 is to the same effect as the proposal before the Authority in International Association of Fire Fighters, Local F-109, AFL-CIO and Department of the Army, Headquarters, Carlisle Barracks, Pennsylvania, 8 FLRA 35 (1982) which required, inter alia, that work assignments be consistent with the position classification standards of the particular occupation. Consequently, based on Carlisle Barracks, and the reasons and cases cited therein, the second paragraph of Union Proposal 4 is likewise inconsistent with management's right, pursuant to section 7106(a)(2)(B), to assign work and is, therefore, outside the duty to bargain. Union Proposal 5 TRAINING. The Union and Management will establish a joint training committee to facilitate training for the implementation of the transition to "modern systems." The Agency contends that it is not obligated to bargain on Union Proposal 5 because, based upon provisions in the parties' current negotiated agreement, "the Union has made a clear and unequivocal waiver to negotiate further on the subject of training during mid-term as proposed." /10/ The Agency also asserts that the proposal concerns the technology, methods and means of performing work and, therefore, pursuant to section 7106(b)(1), is negotiable only at the Agency's election. As to the Agency's first contention, in accordance with the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984), the Agency's position concerning waiver does not provide a basis for dismissing the petition as it relates to Union Proposal 5. Contrary to the Agency's second contention, the Authority finds that the proposal does not directly concern the technology, methods and means of performing work. In this regard, there is nothing in either the parties' agreement, or the language of the proposal itself, which would require the conclusion that the committee proposed to be established would function in anything other than a consultative capacity to suggest methods for meeting training needs. Indeed, the provisions of the parties' present agreement, included in the record and cited by both parties with respect to the waiver issue, lends further support to this conclusion. Consequently, for the reasons set forth concerning Union Proposal 3, above, and again based upon U.S. Army Adjutant General Publication Center, 14 FLRA 438 (1984), Union Proposal 5, which only concerns a procedure by which the Agency will exercise its management rights, is within the duty to bargain. /11/ Union Proposal 6 d. Private offices will be on the inside core near the main entrance. Employee work areas will be on the outside of the room where there is better light and less internal office traffic. f. A second entrance at N1321 will be established so employees may enter and leave without creating traffic through the whole work area and have access to the nearest drinking fountain and provide a second employee escape from the hallway. g. Window areas will not be blocked by private offices and high partitions. h. Doors will not be alarmed. As in GAO 2832, they will be set so they cannot be opened from the hallway. The Agency asserts that it is under no obligation to bargain over Union Proposal 6 sections d and g because the offices which are the subject of these portions of the proposal are occupied by nonbargaining unit personnel. In response, the Union contends, with regard to section 6d that the second sentence of the paragraph "refers only to the space to be used by bargaining unit employees." /12/ The Union does acknowledge, however, that at least some of the private offices referred to in Proposal 6 are occupied by nonbargaining unit employees. Thus, section 6d, by fixing the location within the building of space to be occupied by unit employees, inevitably has an impact on the location of nonunit personnel. That is, locating unit space on the outside of the room would require that private offices, occupied by employees outside the bargaining unit, be sited elsewhere. It is well established that the duty to bargain does not extend to matters concerning positions and employees outside the bargaining unit. See, e.g., International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982). Insofar as section 6g, which also affects the location of private offices by prohibiting them from being located next to windows, would also directly determine conditions of employment of nonunit employees, it concerns matters beyond the representation rights of the Union and likewise is not within the Agency's obligation to bargain. The Agency alleges that sections f and h of Union Proposal 6 are nonnegotiable because they interfere with its reserved right, pursuant to section 7106(a)(1) of the Statute, to determine its internal security practices. Alarming of doors and limiting access to the work area clearly are measures directly related to the internal security of the Agency. In this regard, the Authority observed, in National Association of Government Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air Force Base, Illinois, 16 FLRA No. 57 (1984), that " . . . an agency's right to determine its internal security practices includes the right to determine policies and actions which are part of its plan to secure or safeguard its physical property against internal or external risks." Since sections f and h on their face concern what methods management must, or must not utilize with regard to limiting access into or out of its work area, they are inconsistent with the authority, pursuant to section 7106(a)(1), to determine internal security practices and are outside the duty to bargain. /13/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review, as it relates to Union Proposals 1, 2, the second paragraph of Union Proposal 4 and Union Proposal 6 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 3, the first paragraph of Union Proposal 4 and Union Proposal 5. Issued, Washington, D.C., April 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its Reply Brief, the Union withdrew several additional proposals and portions of others. /2/ As originally submitted to the Authority, Union Proposal 2 referred to "performance appraisal based on their PD." However, the Agency, in its Statement of Position, construed this phrase as referring to "performance standards," and this construction was ; subsequently affirmed by the Union. /3/ As noted previously, the Authority will not base a negotiability determination on an explanation clearly at odds with the express language of a proposal. Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). /4/ Union Reply Brief at 5. /5/ In finding Union Proposal 3 within the duty to bargain, the Authority makes no judgment as to its merits. Moreover, to the extent that there are factual issues in dispute between the parties concerning the duty to bargain on this proposal, in the circumstances of this case, these issues may be raised in other appropriate proceedings. American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984). /6/ Agency Statement of Position at 6. /7/ The pertinent part of 5 CFR 351.403 provides: (a) Each agency shall establish competitive levels consisting of all positions in a competitive area in the same grade or occupational level which are sufficiently alike in qualification requirements, duties, responsibilities, pay schedules, and working conditions, so that an agency readily may assign the incumbent of any one position to any of the other positions without changing the terms of his appointment or unduly interrupting the work program. /8/ In finding the first paragraph of Union Proposal 4 within the duty to bargain, the Authority makes no judgment as to its merits. /9/ Union Reply Brief at 7. /10/ Agency Statement of Position at 7. /11/ In finding Union Proposal 5 to be within the duty to bargain, the Authority makes no judgment as to its merits. Again, as noted in n.5, supra, any subsisting factual issues concerning the obligation to bargain should be resolved in other appropriate proceedings. Wurtsmith Air Force Base, 14 FLRA 302 (1984). /12/ Union Reply Brief at 8. /13/ Cf. American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health, Education and Welfare, Social Security Administration, Northeastern Program Service Center, Flushing, New York, 8 FLRA 202 (1982) (proposal found negotiable where, on its face, it did not relate to internal security matters and the agency failed to demonstrate such relationship).