[ v17 p899 ]
The decision of the Authority follows:
17 FLRA No. 118 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2761 Union and U.S. ARMY ADJUTANT GENERAL PUBLICATION CENTER, ST. LOUIS, MISSOURI Agency Case No. 0-NG-419 DECISION AND ORDER ON NEGOTIABILITY ISSUES The case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of nine Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Section 2. Management Commitment The employer will allocate all necessary resources to effectively administer the EEO Program and there will be criteria for staffing that will also assure effective performance in all program aspects, including affirmative action and processing of discrimination complaints. Managers and supervisors on all levels will fully support and participate in, as appropriate, all policies and programs and are responsible for meeting any goals and objectives established for full equal employment within their areas of jurisdiction. Union Proposal 3 Section 5. EEO Counselors The employer agrees to provide at each activity an adequate staff of trained EEO counselors, who will be available and accessible to all employees, wherever their work stations. In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 615-19 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982), the agency contended that certain proposals in dispute concerning management's establishment of comprehensive plans and programs to implement the agency's equal employment opportunity (EEO) policies and objectives did not concern "conditions of employment" within the meaning of section 7103(a)(14) of the Statute. In that decision, the Authority held, contrary to the agency's contentions, that the proposals concerned conditions of employment and thus were within the duty to bargain. In this case, the Agency asserts that, as distinguished from the Wright-Patterson decision, Proposal 1 does not concern "conditions of employment" within the meaning of section 7103(a)(14). The Authority determines, contrary to the Agency's argument, that the proposal is similar to the proposals in Wright-Patterson and does concern conditions of employment for the reason stated in that decision. In this regard, the proposal would not require any particular actions by the Agency in furtherance of the proposed objective, i.e., supervisory and management participation, so as to be outside the duty to bargain. Cf. American Federation of Government Employees, Afl-cio, Local 909 and Department of the Army, Headquarters, Military Traffic Management Command, Washington, D.C., 6 FLRA 502 (1981) (proposal concerning assessment of supervisors' performance and training does not concern "conditions of employment" pursuant to section 7103(a)(14)). The Agency expressly concedes that it is obligated under Government-wide regulation to provide sufficient resources to administer its EEO program. However, the Agency disputes the negotiability of Proposals 1 and 3 insofar as they would establish a contractual obligation "independent of the regulatory requirement and which would continue even if the regulation were rescinded." /2/ As to this argument, the Authority concludes, contrary to the Agency, that the proposals herein would not establish an independent contractual obligation but instead would simply implement the Agency's EEO program consistent with law. /3/ In this regard, the proposals would provide generalized support for the EEO program. For example, Proposal 1 would provide for the allocation of "necessary resources to effectively administer the EEO program." The Union explains the proposal as follows: (T)he proposal merely requires a commitment to EEO, and in no manner does the proposal address itself to determining the way in which the agency will perform the particular activities by which it accomplishes its mission. (Footnote omitted.) Proposal 3 would simply provide for "adequate" staffing, and, in our view, would similarly not require the Agency to allocate its resources in any particular way beyond that which is authorized by law. As to the Agency's claims that the proposals violate management rights, the record does not establish that the proposals would prescribe the assignment of particular duties to certain employees or the establishment of new positions to perform EEO program-related duties. Consequently, the Agency has not shown that the proposals are inconsistent with management's rights to hire or assign employees pursuant to section 7106(a)(2)(A) or its right to determine the number of employees assigned pursuant to section 7106(b)(1) of the Statute. /4/ Rather, the proposals would provide for a general commitment to the Agency's EEO program in a manner which is substantially similar to the proposals held negotiable in Wright-Patterson. Accordingly, it is determined that the proposals are not outside the duty to bargain. Union Proposal 2 Section 3. Personnel Actions and Employment Practices All personnel actions and employment practices involving employees and applicants for employment will be based solely on law and the terms of this contract. The duty to bargain established in the Statute extends to matters relating to "conditions of employment," i.e., personnel policies, practices and matters affecting working conditions of unit employees. /5/ Under section 7103(a)(2) the term "employee" relevantly includes only individuals currently employed in an agency. It does not include individuals who are applicants for employment with an agency. Accordingly, insofar as the proposal would impose certain requirements on the Agency as to applicants for employment, the proposal, as alleged by the Agency, is not within the Agency's duty to bargain because it is not concerned with conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. Cf. American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA 125 (1983) (proposal benefiting former employees only if and when they are reemployed in bargaining unit positions concerns matters which are conditions of employment). Insofar as it is applicable to employees, the proposal would provide that all personnel actions and employment practices of the Agency "will be based solely on law and the terms of (the parties') contract". In this connection, section 7117 of the Statute provides that the duty to bargain does not extend to proposals which are inconsistent with law or any Government-wide rules or regulations. /6/ The agency argues, in effect, that the proposal's requirement that its actions be based solely on law and contract is in conflict with this statutory provision. The Union states that this is not its intent. However, it is the Agency's interpretation of the proposal that is consistent with its express language. The proposal purports to enumerate the sole legal bases for judging the propriety of agency personnel actions and employment practices, and thereby excludes Government-wide rules and regulations. Accordingly, the Agency's contention that the proposal is not within the duty to bargain in this connection must be sustained. /7/ If the Union were to revise its proposal consistent with its stated intent, the proposal would be within the duty to bargain. See, e.g., American Federation of Government Employees, AFL-CIO, Local 1533 and Naval Supply Center, Oakland, California, 8 FLRA 33, 34 n. 2 (1982). See also American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 11 FLRA 608, 612-14 (1983) (Member Frazier, concurring). Union Proposal 4 Section 6. Affirmative Action . . . . Utilization of Workforce Skills. The Employer will fully utilize the skills and potential of employees, especially those of lower-graded employees. . . . . In connection with efforts to correct underutilization and underrepresentation of minorities and women the employer will at least: a. Identify and provide work opportunities commensurate with employee skills and potential, especially at the lower levels(.) Union Proposal 4 expressly would require management to provide employees with opportunities to perform work commensurate with their skills and abilities. The proposal is identical to Proposal 3 in American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA No. 126 (1984). In that case, the Authority, relying on its decision as to "the last sentence of Article 10 section 9" in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982), remanded as to other matters, D.C. Cir. No. 82-2225 (Jan. 19, 1984), vacated by FLRA as to other matters, May 3, 1984, concluded that the proposal directly interfered with the agency's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. Consequently, based on U.S. Customs Service, and the reasons and cases cited therein, Union Proposal 4 herein is outside the duty to bargain. Union Proposal 5 Section 6. Affirmative Action . . . . Utilization of Workforce Skills. . . . . In connection with efforts to correct underutilization and underrepresentation of minorities and women the employer will at least: . . . . c. Designate a specific number of positions to be utilized to provide opportunities for employees to enhance their skills, perform at their highest potential, and advance in accordance with their abilities through results-oriented training programs. Based on the Union's statement of its intent and the language of the proposal, the proposal would require the Agency to fill an undetermined, specific number of positions as upward mobility or training positions. In this regard, the proposal is substantially identical to the second sentence of the disputed proposal in National Treasury Employees Union and Internal Revenue Service, 2 FLRA 281 (1979), which would have required the agency to fill certain percentages of available vacancies at upward mobility positions. The Authority held that portion of the proposal directly interfered with management's right to assign employees under section 7106(a)(2)(A) of the Statute. For the reasons stated in that case, Proposal 5 herein is similarly outside the duty to bargain. See also American Federation of Government Employees, AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286 (Provision 1) (1983). /8/ Union Proposals 6-7 Section 6. Affirmative Action . . . . Utilization of Workforce Skills. . . . . In connection with efforts to correct underutilization and underrepresentation of minorities and women the employer will at least: . . . . (Proposal 6) h. Permit individuals with physical or mental handicaps, chronic ailments, illnesses or injuries, and single heads of families who have dependents, to utilize sick or annual, or LWOP, to handle responsibilities for themselves and/or dependents. Supervisors will grant leave in all cases where the need is clearly documented on the request for leave, without undue pressure to the employee. (Only the underscored portion is in dispute.) (Proposal 7) i. Accommodations, including granting administrative leave, will be made to the religious needs of employees, including those who observe the Sabbath on a day other than Sunday, when such changes can be made without undue adverse impact on the other employees. Union Proposal 6 would require management to grant an employee's request for leave without regard to the necessity for that employee's service during the period covered by the request. In that regard, it is identical to the disputed portion of Proposal 4 in AFGE, Local 2263 and Kirtland Air Force Base, 15 FLRA No. 126 (1984). The Authority found that proposal, insofar as it involved the granting of annual leave, violated management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute and, insofar as it involved the granting of sick leave, was inconsistent with 5 CFR 630.401, a Government-wide regulation. For the reasons more fully stated in that case, the Authority finds Proposal 6 herein to be outside the duty to bargain. Union Proposal 7 would base the standard for granting administrative leave or other "accommodations" to the religious needs of unit employees upon the absence of undue adverse impact on other unit employees. It is identical to Union Proposal 5 in AFGE, Local 2263 and Kirtland Air Force Base, 15 FLRA No. 126 (1984). For the reasons stated with respect to that proposal therein, Union Proposal 7 violates management's right to assign work and also violates other law, i.e., 42 U.S.C. 2000e(j), and is, therefore, outside the duty to bargain. Union Proposal 8 Section 6. Affirmative Action . . . . The Employer will brief personnel and emphasize their responsibility for implementing established EEO goals and objectives through special staff conferences and supervisory/managerial development programs. From the express language of the proposal and the Agency's understanding of its intent, which is not disputed by the Union, the proposal is chiefly concerned with the Agency's objectives in training and developing its supervisory and management personnel and the actions it will take to achieve such objectives. Accordingly, as it is concerned with such matters rather than either the representational rights of the exclusive representative or matters which directly relate to the conditions of employment of unit employees, it is not within the duty to bargain pursuant to section 7103(a)(14) of the Statute. American Federation of Government Employees, National Council of EEOC Locals No. 216, AFL-CIO and Equal Employment Opportunity Commission, Washington, D.C., 3 FLRA 504 (1980). Union Proposal 9 Section 6. Affirmative Action . . . . The Employer will assure that all employees, recognized employee organizations, and applicants understand the EEO program. (Only underscored portion in dispute.) The proposal is in dispute insofar as it provides that the Agency will assure that all applicants understand the EEO Program. As explained more fully in connection with Proposal 2, above, the duty to bargain pursuant to section 7103(a)(14) of the Statute, in conjunction with the definition of "employee" provided for in section 7103(a)(2) of the Statute, only extends to conditions of employment of unit employees. It does not extend to matters affecting applicants for employment. Accordingly, as the proposal is concerned with the Agency's actions as to applicants for employment, it is not within the Agency's duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposals 2, 4, 5, 6, 7, 8 and 9 be, and it hereby is, dismissed. /9/ IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposals 1 and 3. Issued, Washington, D.C., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its response to the Agency's statement of position in this case, the Union has requested that six additional proposals which it presented for decision in its initial petition for review be withdrawn from consideration. The Union's request is granted and those proposals will not be considered further herein. /2/ Agency Statement of Position at 2. /3/ In this regard, Exec. Order No. 11,478, 29 CFR 1613.201 (1984) provides as follows: EQUAL EMPLOYMENT OPPORTUNITY IN THE FEDERAL GOVERNMENT . . . . Sec. 2. . . . It is the responsibility of each department and agency head, to the maximum extent possible, to provide sufficient resources to administer such a program in a positive and effective manner(.) /4/ Cf. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 622-23 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982) (proposal requiring the assignment of EEO duties to particular employees would violate management's right under section 7106(a)(2)(B) to assign work to positions or employees). /5/ See sections 7103(a)(12), 7103(a)(14) and 7114 of the Statute. /6/ That section provides, in pertinent part: 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. /7/ In this regard, 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., National Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA No. 18 (1984) at 2 n. 3 of decision. /8/ As to the Union's argument that the proposal incorporates the mandates of regulatory authorities, the proposal is outside the duty to bargain as substantively interfering with the exercise of management's rights under the Statute, notwithstanding the fact that the Agency may be required to implement such actions by outside rule or regulation. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Proposals 1 and 2), affirmed as to other matters sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). /9/ In so holding, the Authority finds it unnecessary to address the Agency's additional contentions as to the nonnegotiability of these proposals.