[ v27 p363 ]
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/.