[ v21 p1124 ]
The decision of the Authority follows:
21 FLRA No. 129 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 12 Union and DEPARTMENT OF LABOR Agency Case No. 0-NG-938 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of twenty-four Union proposals. These proposals are set forth in an Appendix to this decision. II. Background The Union submitted the proposals at issue to the Agency in response to the Agency's announcement of its intention to implement a space reduction plan in compliance with a General Services Administration (GSA) space reduction regulation. This regulation is GSA Federal Property Management Regulation (FPMR), Temporary Regulation D-68, which was originally effective from March 9, 1983, until January 31, 1984, and was extended until May 25, 1985. However, it has been superseded by FPMR Temporary Regulation D-71, effective July 1, 1985, to June 30, 1987. 41 C.F.R. Section 101-17 (1985) at 333. III. Positions of the Parties The Agency does not argue that any of the twenty-four disputed proposals is inconsistent with applicable law, rule or regulation and, hence, is nonnegotiable. Rather, the Agency's sole contention in this case is that it has no duty to bargain on the proposals under the circumstances because its implementation of the GSA space reduction regulation will have no material effect or substantial impact on conditions of employment of bargaining unit employees. The Agency argues that in these circumstances a requirement to bargain on the Union's proposals would be inconsistent with the mandate of section 7101(b) that the Statute "be interpreted in a manner consistent with the requirement of an effective and efficient Government." In support, the Agency relies on the Seventh Circuit's decision in Internal Revenue Service v. Federal Labor Relations Authority, 717 F.2d 1174 (7th Cir. 1983), denying enforcement of Internal Revenue Service, Chicago, Illinois, 9 FLRA 648 (1982). According to the Union, the disputed proposals are clear as written. The Union did not file a Reply Brief. IV. Analysis and Conclusion A. Duty to Bargain The Agency's reliance on Internal Revenue Service, 717 F.2d 1174 (7th Cir. 1983), is misplaced as that decision concerned whether an agency's failure to bargain in the circumstances of that case constituted an unfair labor practice and not whether particular matters sought to be bargained are consistent with applicable law, rule and regulations. When a union files a negotiability appeal under section 7105(a)(2)(E) of the Statute, section 7117(c) entitles it to a decision on the negotiability issues in the appeal. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of the case, such issues should be raised in other appropriate proceedings. See 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). Hence, the Agency's contention that, under the circumstances, it has no duty to bargain on the disputed proposals, is not relevant in the context of a negotiability dispute. B. Proposals 1-16, 18, 19, 21-24 It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g 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). A party failing to assume the burden acts at its peril. Proposals 1-16, 18, 19 and 21-24 generally concern reductions in space, space allocation, the arrangement of space, the furniture and equipment to be utilized by employees and information related to those matters requested by the Union for use in negotiations. The Authority has held that such matters principally relate to the working conditions of employees and are within the duty to bargain unless an agency demonstrates that the proposals are inconsistent with applicable law or regulation. See, for example, American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 583 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983) in which various proposals concerning bookshelf and file cabinet space, office partitions, office doors, shower and locker facilities were found to be within the duty to bargain because the agency did not establish that the selection of furniture, equipment or office design had, as claimed, a technological relationship to accomplishing or furthering the performance of the agency's work with which the particular proposals interfered. Compare American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19 FLRA No. 130 (1985), in which proposals concerning employee seat assignments were found to concern the methods and means of performing work within the meaning of 7106(b)(1) and outside the duty to bargain because the agency made the proper showings. The Agency in this case has made no claim whatever, and it is not otherwise apparent, that the disputed proposals are inconsistent with law, Government-wide rule or regulation or with an agency regulation for which a compelling need exists. Hence, the Authority is constrained to find Proposals 1-16, 18, 19 and 21-24 to be within the duty to bargain. C. Union Proposals 17 and 20 Union Proposal 17 provides that the "adverse impact of space change on performance" will be reflected by certain specific adjustments in performance standards. Proposal 20 provides that productivity levels will be established prior to the space changes and that they will be measured and reduced at intervals after the changes. These proposals are to the same effect as Union Proposal 2 found nonnegotiable in National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), petition for review filed sub nom. Department of Health and Human Services, Social Security Administration v. FLRA, No. 85-1601 (4th Cir. June 19, 1985). In that case, the proposal provided that time limits for certain tasks would "be adjusted to take into consideration the additional research and development time needed." The Authority held that as the proposal directly addressed the content of performance standards by requiring that time limits be adjusted, management's authority to establish these performance standards was substantively restricted. Thus, the Authority concluded in Department of Health and Human Services that the proposal interfered with the agency's right to assign work and direct employees pursuant to section 7106(a)(2)(A) and (B) of the Statute. Hence, for the reasons and cases cited in Department of Health and Human Services, Union Proposals 17 and 20 interfere with the rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute and are outside the duty to bargain. V. Order 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 17 and 20 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 Proposals 1-16, 18, 19 and 21-24. /*/ Issued, Washington, D.C., May 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding these proposals within the duty to bargain, the Authority makes no judgment as to their merits. APPENDIX LOCAL 12 PROPOSALS TO ADDRESS THE ADVERSE IMPACT OF THE LMSA SPACE REDUCTION PROGRAM 1. Space changes in LMSA will not be implemented until full and final consultation and negotiations have occurred between the Department and the union. 2. Management will provide all information requested before completing negotiations with the union. 3. LMSA will limit its space reduction in fiscal 1984 to a 10% reduction by September 1984, as provided in GSA Regulation D-68. 4. In reducing space, the current individual space tables will be followed by LMSA (see below). Where there must be a reduction in individual allocations the space provided for higher grades (supervisors-managers-executives) will be reduced to meet the goals along with their adjoining reception areas and foyers. In no case will individual space below 150 square feet be reduced. TABLE OMITTED 5. To further the stated LMSA goal "THAT SPACE OCCUPIED BY LMSA EMPLOYEES SHALL BE ARRANGED AND MAINTAINED SO AS TO ASSURE A QUALITY WORKING ENVIRONMENT" the following measures are proposed: a) windows will not be blocked by private offices. b) the "executive core" approach will be followed with private offices located on the inner core. c) window space will be occupied by non-supervisors. d) space not by a window will be 10% greater to provide for an "equalization of desirability." e) meeting areas will not be included inside private offices and all meeting areas will be useable by all employees on a reservation basis. f) in every office a number of common areas will be provided for small meetings with clients, contractors, task forces, colleagues, or for collating. g) space for clericals or anyone whose space is not defined by walls or partitions will be shown on the plans by dotted lines and marked on the floor at the corners with carpet tacks in the rug. h) the practice of placing clericals in what are essentially passageways will not be followed. 6. Employees may choose whether they wish to have open space or closed space where these choices are posed. Employees will not be limited in their use of partitions in open space. Clericals may elect to have partitions. 7. Reasonable official time will be authorized for the Steward Committee to meet with employees in each office (space) to review management plans and solicit comments and develop alternatives, if appropriate. 8. In each office, after managment has prepared a plan, copies will be provided the union and all employees. 9. Management will cancel unnecessary movement of offices from one location to another when the current office space is adequate to accomplish the mission. 10. Management will provide the union copies of all floor plans for changes at least 30 days prior to implementation of a space change. If floor plans are changed this will initiate another 30 day period. 11. Employees will be provided a written notice at least 10 working days in advance of a move. Packing boxes used to relocate employees, will be provided at least 5 working days in advance of the actual move. 12. In making plans, the prints will show space allowed for coat racks, special equipment, xerox machines, library shelves and other fixtures that are a part of the office. 13. The Labor Management Relations Committee will study the sound and ventilation problems of smaller space, including, but not limited to, the use of "white sound," sound deadening materials, drapes, comparative partitions and so forth. 14. The new space arrangements will include self-determination in each office space for smoking rules. Such rules may be initiated by the union or by the supervisor and will be established to the greatest extent possible by consent of all in the space and in the framework of Article 4, Sections 2 and 4. The right of any employee to a smoke free environment will be so addressed. 15. LMSA will provide Local 12 with an office for the use of the Steward Committee and bargaining unit employees. 16. New furniture, drapes, rugs and decorations will not be selected until the union has been provided catalogs and/or samples. 17. Adverse impact of space change on performance will be reflected in appropriate adjustments in performance standards, including a 25% increase in deadlines and a 25% reduction in objective minimum standards such as "correct 85% of the time." 18. Dividers will be noiseproof. 19. White sound will be re-introduced. 20. Current productivity levels will be established prior to space changes and will be again measured 1 year and 2 years after space changes. All productivity expectations and standards will be reduced accordingly. 21. New furniture selections will not be made until choices and catalogs are made available to the union and to employees. 22. No reduction in space will be implemented until new furniture is available. 23. Space changes in LMSA will be implemented gradually as need for moves and reorganizations occur. 24. All prints will show the number of square feet (by number) for each individual's space and be a clear copy.