[ v27 p363 ]
27:0363(49)NG
The decision of the Authority follows:
27 FLRA No. 49
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Union
and
DEPARTMENT OF LABOR
Agency
Case No. 0-NG-1044
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority on a petition for review of
negotiability issues filed under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute) and concerns
the negotiability of ten proposals.
II. Background
The dispute concerning these proposals arose as the result of the
Agency'a announcing its intention to implement a space reduction plan to
comply with a General Services Administration (GSA) space reduction
regulation -- GSA Federal Property Management Regulation (FPMR),
Temporary Regulation D-68, the most recent version of which is FPMR
Temporary Regulation D-73. 52 Fed. Reg. 4,293 (Feb. 11, 1987).
III. Procedural Issues
The Agency argues that it has no duty to bargain concerning the
proposals because: 1) its space reorganization will not result in a
change in conditions of employment sufficient to give rise to a duty to
bargain; 2) the union bargained over the issues addressed in these
proposals and has waived its right to bargain further; and 3) the
issues addressed in the proposals are more appropriately resolved
through the parties' grievance and arbitration procedures. Based on
these claimed threshold issues concerning the duty to bargain, the
Agency contends that the Authority lacks jurisdiction to determine the
negotiability of the proposals regarding its space reduction efforts.
Where the conditions for review of negotiability issues have been
met, a union is entitled to a decision by the Authority as to whether a
proposal is negotiable under the Statute, despite the existence of
additional issues in the case, for example, an alleged conflict between
a proposal and a controlling agreement. American Federation of
Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir.
1983). To the extent that there are additional issues regarding the
duty to bargain in the specific circumstances of this case, these issues
should be resolved 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, 306 n.6 (1984).
Accordingly, the claimed existence of threshold duty to bargain
questions does not preclude us from determining the negotiability of
proposals that are otherwise properly before us.
A different situation is presented, however, for proposals as to
which threshold duty to bargain issues are raised but for which the
conditions for review of negotiability issues have not been met.
Neither the court's decision in AFGE, Local 2736 nor the Authority's
decision in Wurtsmith addressed that situation. Specifically, as to
proposals 1, 2, 7, 8, 9 and 10 (set forth in the Appendix to this
decision), the Agency contends only that there is no duty to bargain
because management is neither proposing no effecting any changes in the
area encompassed by these proposals and, in the case of proposals 2 and
9, that the subject matter is covered by the parties' Agreement. The
Agency does not argue that these proposals are inconsistent with law,
rule, or regulation.
Under section 2421.1 of our Regulations, we will consider a petition
for review of a negotiability issue only where the parties are in
dispute as to whether a proposal is inconsistent with law, rule or
regulation. In this case, as noted above, there is no issue before us
as to whether proposals 1, 2, 7, 8, 9 and 10 are inconsistent with law,
rule or regulation. There are therefore no issues as to those proposals
for us to consider in this negotiability proceeding. In these
circumstances, the conditions governing review of negotiability issues,
as described in section 2424.1 of our Regulations, have not been met.
Moreover, as we noted above, other issues concerning proposals 1, 2, 7,
8, 9 and 10 about which the parties are in dispute -- whether the
subject matter of those proposals is covered by the parties' Agreement
or whether management has proposed or effected a change in the areas
covered by those proposals so as to give rise to a duty to bargain --
should be resolved in other appropriate proceedings, such as the
parties' negotiated grievance procedure or the unfair labor practice
procedures under section 7118 of the Statute. Therefore, we will
dismiss the Union's Petition for Review as to those proposals, without
prejudice to the Union's right to file a negotiability appeal if the
conditions governing review of negotiability issues are met and if the
Union chooses to file such an appeal. American Federation of Government
Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA No. 89
(1987).
As to the remaining proposals in this case, the Agency additionally
alleges that they are inconsistent with law and/or Government-wide
regulation. Those proposals, even though the Agency asserts that
elements of the threshold jurisdictional issues discussed above preclude
the Authority's consideration, are properly before us and we will
resolve the question of their negotiability.
IV. Proposal 3
The FLRA Members disagree over the negotiability of this proposal.
The decision and order on Proposal 3 and Member Frazier's concurring and
dissenting opinion immediately follow this decision.
V. Proposal 4
Supervisors will consider individual employee's request for
partitioning of work space. If such a request is denied, the
supervisor will provide a written rationale for the denial to the
affected employee and his/her representative.
A. Positions of the Parties /1/
The Agency assets, primarily, that this proposal concerns
nonbargaining unit, namely, supervisory employees and is, consequently,
nonegotiable. The Union asserts that this proposal is merely intended
to ensure that it, as the bargaining unit employees' representative, is
informed of any denials of requests concerning working conditions.
B. Analysis and Conclusion
The Authority finds that the proposal would assign the duty of
considering specific requests as to partitioning to particular Agency
employees, "supervisors", in this instance. As we noted in American
Federation of Government Employees, AFL-CIO, Local 1858 and U. S. Army
Missile Command, The U. S. Army Test, Measurement, and Diagnostic
Equipment Support Group, the U. S. Army Information Systems Command --
Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 6) the
nonnegotiability of provisions which assign tasks to particular agency
personnel is established in long-standing Authority precedent and should
be familiar to union and management representatives. Thus, for a reason
different from that alleged by the Agency, we find that this proposal,
by assigning specific duties to supervisors, violates management's right
"to assign work" under section 7106(a)(2)(B) of the Statute and is,
therefore, outside the duty to bargain. See, for example, American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 4 FLRA 384, 386 (1980). Also, as we noted in connection with
provisions 6, 8 and 10 in Redstone Arsenal Commissary, proposal 4 in
this case is nonnegotiable only because it requires particular personnel
-- supervisors -- to perform certain tasks, a requirement which appears
to be subsidiary to the basic intent of the proposal. Accordingly, our
comments in that case concerning the avoidance of such defects are
equally applicable here.
VI. Proposals 5 and 6
Proposal 5
Office changes and relocations which involve any reduction of
space shall be in accordance with GSA allowances for employee
office space table.
Table -- SPACE CATEGORIES
TABLE OMITTED
Proposal 6
Management will stop movement of offices from one location to
another when the current office space (square feet per person) is
adequate to accomplish the mission of the office.
A. Positions of the Parties
The Agency contends that these proposals are nonnegotiable because
they (1) concern nonbargaining unit employees; and (2) contravene a
Government-wide regulation, namely GSA's space reduction regulation --
FPMR D-68. The Union asserts that Proposal 5 describes the space
allocation figures written into the parties' contract which must be
followed until an alternative allocation table is negotiated. Proposal
6, according to the Union is intended to limit office relocations which
serve "no apparent useful purpose."
B. Analysis and Conclusion
Contrary to the Union's claim that the space categories table in
proposal 5 was made part of the parties' collective bargaining
agreement, we find nothing in the record to support this claim.
Consequently, the Union's assertion that the figures in the table must
prevail is rejected.
As to the proposals themselves, both require the Agency to take or
not take specific steps regarding its space reduction program. One
proposal would prescribe space allocations on the basis of square feet
per person based upon general schedule grade rather than the latest
overall space utilization objective of 135 square feet or less per
person and the other would have the Agency discontinue space allocation
efforts once its office space was adequate to accomplish its mission.
Essentially, both proposals would preclude the Agency's implementation
of the requirements of GSA's most recent FPMR Temporary Regulation D-73
which prescribes an overall space utilization goal of 135 square feet or
less per person. The Authority, in American Federation of Government
Employees, Local 12 and Department of Labor, 19 FLRA 161 (1985), ruled
that Federal Property Management Regulations were Government-wide
regulations within the meaning of section 7117(a)(1) of the Statute
because they apply to the Federal civilian work force as a whole.
Consequently, proposals 5 and 6 are outside the duty to bargain under
section 7117(a)(1) of the Statute because they conflict with FPMR
Temporary Regulation D-73, 52 Fed. Reg. 4,293 (Feb. 11, 1987), a
Government-wide regulation. /2/
VII. Order
The petition for review as to proposals 4, 5, and 6 is dismissed.
The petition for review as to proposals 1, 2, 7, 8, 9, and 10 is
dismissed without prejudice to the Union's right to file a negotiability
appeal if the conditions governing review of negotiability issues are
met and if the Union chooses to file such an appeal.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 3
Proposal 3
To further the goal "to assure quality working environment," the
following measures will be followed:
a. Windows will not be blocked by private offices.
b. Conference rooms and private offices will be located on the
inner core of the space.
c. Bargaining unit employees will be given priority in
allocating work space adjacent to windows.
d. All meeting areas will be equally accessible to all
employees.
e. Lighting and ventilation surveys in relocated offices will
be conducted upon request, and the appropriate remedies will be
implemented.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because it
(1) concerns nonbargaining unit employees and (2) contravenes
management's right to determine the technology methods, and means of
performing work under Section 7106(b)(1) of the Statute. The Union, in
explaining this proposal, asserts that it is "intended to improve
working conditions for OSHA employees similar to those provided other
DOL agencies."
B. Analysis and Conclusion
We conclude that this proposal is within the duty to bargain.
The proposal (a) through (d) concerns the location of private
offices, blockage of window areas, and the location of employee work
areas near windows. Thus, this proposal is materially to the same
effect as the ones we found negotiable in American Federation of
Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA
No. 82 (1987). In Department of Labor similar proposals, relating to
similar concerns over office space were found to not be so intrinsically
related to the working conditions of non-unit employees as to make them
nonnegotiable. In Department of Labor we also rejected a similar
argument regarding the alleged contravention of the agency's rights to
determine the technology, methods, and means of accomplishing its work.
Moreover, subsection (e) of this proposal relates to adequate
ventilation and lighting and, therefore, concerns conditions of
employment within the duty to bargain. See Internal Revenue Service,
Chicago, Illinois and National Treasury Employees Union (NTEU) and NTEU,
Chapter 95, 9 FLRA 648, 651 (1982), enforcement denied as to other
matters sub nom. Internal Revenue Service v. FLRA, 717 F.2d 1174 (7th
Cir. 1983); National Treasury Employees Union and NTEU Chapter 80 and
Department of the Treasury, Internal Revenue Service, Central Region, 8
FLRA 197 (1982). Consequently, since the Agency has not demonstrated
that this proposal is inconsistent with applicable law or regulation and
for the reasons cited in Department of Labor, we find that this proposal
is within the duty to bargain.
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 3. /3/
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, concurring in part and dissenting in part:
In my opinion in American Federation of Government Employees, Local
12, AFL-CIO and Department of Labor, 25 FLRA No. 82 (1987), I stated
that proposals, similar to subsections (a) through (d) of the one in
dispute, would be negotiable to the extent they were intended to affect
only (1) office space currently occupied by unit employees or (2)
unoccupied office space which is equivalent to that currently occupied
by unit personnel in the inner and outer areas. In this case, as in
Department of Labor, however, there is no indication in the record of
the majority's interpretation that the proposal in dispute is so
limited. Consequently, for the reasons more fully set forth in
Department of Labor, I respectfully dissent to the extent that my
colleagues' decision extends to office space currently allocated to
non-unit employees under subsections (a) through (d) of the disputed
proposal.
In regard to subsection (e) of the disputed proposal, the Authority
found in Internal Revenue Service, Chicago, Illinois and National
Treasury Employees Union (NTEU) and NTEU, Chapter 95, 9 FLRA 648, 651
(1982), enforcement denied as to other matters sub nom. Internal Revenue
Service v. FLRA, 717 F. 2d 1174 (7th Cir. 1983) that the correction of
heating and air conditioning problems in office areas affected the
working conditions of employees and was within the duty to bargain under
the Statute. In this case, the first portion of subsection (e)
essentially seeks adequate ventilation for bargaining unit employees and
is materially to the same effect as proposal 13-Part E. 19 found
negotiable in American Federation of Government Employees, AFL-CIO,
National Council of Social Security Field Office Locals and Department
of Health Services, Social Security Administration, 24 FLRA No. 81
(1986). Moreover, I conclude that the remaining portion of subsection
(e) concerning lighting is also a condition of employment within the
duty to bargain. See, for example, Social Security Administration,
Office of Hearing and Appeals, Region II, New York, New York, 19 FLRA
328 (1985) (Proposal 15). Finally, I would agree with my colleagues
that the Agency has not demonstrated that subsection (e) interfered with
its rights to determine the technology, methods, and means of
accomplishing its work. Consequently, I conclude that subsection (e)
would not interfere with the Agency's rights under section 7106(b)(1).
Accordingly, for the reasons set forth above, I concur with my
colleagues' decision with regard to subsection (e) of the disputed
proposal.
Issued, Washington, D.C., May 29, 1987.
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union filed an explanation of the meaning of the proposals
with its Petition for Review but did not file a Response to the Agency's
Statement of Position.
(2) In view of the determination regarding these proposals it is
unnecessary to consider the Agency's other allegations pertaining to
their negotiability.
(3) In finding this proposal to be within the duty to bargain the
Authority makes no judgment as to its merit.
APPENDIX
UNION'S PROPOSALS ADDRESSING THE ADVERSE IMPACT OF THE
AGENCY'S SPACE
REDUCTION PROGRAM
(1) I. INTRODUCTION
This is a Memorandum of Understanding entered into by the U.S.
Department of Labor (DOL) and Local 12, AFGE, AFL-CIO, in accordance
with the provisions of the DOL-Local 12 Collective Bargaining Agreement.
The terms of this Memorandum of Understanding as specified
below apply only to employees in the bargaining unit represented
by Local 12 in the Occupational Safety and Health Administration
(OSHA) who are affected by the OSHA reorganization which was
effective October 2, 1983.
Once ratified and approved, this Memorandum of Understanding
will be duplicated by the Department and distributed to all
affected OSHA employees in the bargaining unit and their
supervisors and managers.
(2) II. Floor plans, once submitted to Local 12, will not be changed
unless sufficient additional time is provided for review.
(7) VII. Management will make every effort to provide packing boxes
in sufficient quantity and time to allow employees to prepare for the
move.
(8) VIII. Affected employees will be provided a written notice at
least three days in advance of a move.
(9) IX. As evidence of a model safety and health program within OSHA,
partitions currently in use that have metal bases which are a tripping
hazard will no longer be allowed in OSHA offices. All such partitions
will be replaced with new six-foot partitions which are not tripping
hazards. All such partitions will be replaced within 60 days of the
move.
(10) X. DURATION AND TERMINATION
This memorandum of understanding shall take effect when it has been
signed by Local 12 and the Department in accordance with Article 39,
Section 3, of the DOL-Local 12 Agreement. It shall remain in effect
until /date/.