[ v27 p375 ]
The decision of the Authority follows:
27 FLRA No. 51 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 644 Union and DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION Agency Case No. 0-NG-1082 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 concerns six proposals which resulted from the relocation of the Agency's Waynesburg, Pennsylvania facility. We find that proposals 2, 6, 7 and 8 are within the duty to bargain. We find that proposals 3 and 4 are not within the duty to bargain. II. Preliminary Issues A. Motion to Dismiss The Agency filed a motion to dismiss the petition for review as to Proposals 2, 4, 6, 7, and 8 on the ground that they are not sufficiently specific and delimited to permit us to decide the negotiability issues. The Union did not file a reply brief. We find that the proposed language of each proposal is sufficiently specific to permit us to determine whether it is consistent with applicable law, rule or regulation and, thus, negotiable under the Statute. See National Federation of Federal Employees, Local 561 and Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA 759 (1985), and the case cited in the decision. Therefore, we deny the motion. B. Other Threshold Issues The Agency contends, generally, that it has no duty to bargain and that the matters in dispute are more appropriately resolved through unfair labor practice and arbitration procedures. In particular, it asserts in regard to Proposals 4, 7, and 8 that 1) no change in working conditions was made which would obligate it to bargain over them; and 2) the matters addressed in these proposals are covered by the parties' agreement and are, therefore, more appropriately resolved through the parties' grievance procedures. The Agency essentially contends that the Authority lacks jurisdiction to decide the negotiability of the proposals in this case. We conclude that the proposals are properly before us in this negotiability appeal. 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. Under section 2424.1 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. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA No. 89 (1987). In this case, there are issues raised concerning whether the proposals are inconsistent with law, rule or regulation. Consequently, these proposals are properly before us and we will now resolve their negotiability. III. Proposal 2 Loading and unloading space shall be provided in an accessible area as near to the building as possible. A. Positions of the Parties /1/ The Union contends that the Agency has negotiated over similar proposals at four other offices. It states that the intent of the proposal is not to bargain over a reserved management right but, rather, to ensure that the bargaining unit employees do not have to carry heavy mine inspection equipment very far when they return to the office at the end of the work day. The proposal seeks to accomplish this by securing a loading space located near the office. The Agency contends that because the disputed proposal does not specify a particular location for a loading space, it would require negotiations over all available space. It claims that since some of this space may constitute a part of the technical means of performing the Agency's work, the proposal seeks bargaining over a matter related to the technology, methods, and means of performing work, which is negotiable only at its election under section 7106(b)(1). B. Analysis and Conclusion The proposal is intended to minimize the distance that bargaining unit employees will have to carry mine inspection equipment. It is not intended to, and would not by its language, interfere with the Agency's right to decide the technical means and methods of accomplishing its mission. The proposal merely calls for locating the equipment loading and unloading area in an accessible area as near to the Agency's office as possible. It does not require the Agency to designate any particular space for this purpose. The Agency has not demonstrated how the request that the loading area be located in an accessible area as close as possible to the office relates to the technology, methods, or means used by the Agency for accomplishing or furthering the performance of its work. In the absence of such a showing, the location of the loading area would be merely incidental to the performance of the Agency's work and would be principally related to matters affecting working conditions of employees. Finally, noting that the Agency does not claim that this proposal is inconsistent with any other applicable law, rule or regulation, and no such inconsistency is apparent, we find that Proposal 2 is within the duty to bargain. American Federation of State, County and Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C. 7 FLRA 578 (1982) (Proposal IX), enforced sub. nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). IV. Proposal 3 Employees shall not be required to physically move any material or equipment other than their personal property during this move. A. Positions of the Parties The Agency contends that this proposal violates the Agency's right "to assign work" pursuant to section 7106(a)(2)(B) of the Statute. The Union asserts that similar proposals have been negotiated by the Agency at other offices. It further asserts that the management right to assign work only concerns work related to an employee's official job duties and moving is not encompassed within a mine inspector's job description. B. Analysis and Conclusion Management's right "to assign work" under section 7106(a)(2)(B) includes the right to determine the particular duties to be assigned and the particular employee to whom or position to which duties will be assigned." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 679, 775 (1980) aff'd sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). The Union's argument that management's right only applies to duties contained in a position description misses the point. A position description merely reflects the duties which have been assigned to a particular position, but is not a limitation on the duties which may be assigned. National Federation of Federal Employees, Local 1622, and Department of the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 581 (1984). While a proposal to require position descriptions to accurately reflect work assigned to the employee is negotiable, American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979) (Proposal II), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), a proposal such as Proposal 3 which expressly precludes the Agency from requiring employees to perform certain duties directly interferes with management's right to assign work. The fact that the Agency may have agreed to similar clauses in other instances as claimed by the Union is not a factor relevant to the negotiability of the proposal, with which we are alone concerned in this proceeding. Consequently, the proposal is nonnegotiable. V. Proposal 4 Suitable shower and sanitary facilities shall be provided for all employees. A. Positions of the Parties The Union intends this proposal to obtain shower and sanitary facilities for the use of all bargaining unit employees. It asserts that the parties' agreement does not cover sanitary facilities and does not provide showers for all employees. The Agency contends that the shower facility issue was fully bargained and made a part of the parties' agreement in Article 25, Section 7(B) which provides shower facilities for mine inspection personnel only while sanitary facilities are provided to all employees according to GSA regulation. It therefore asserts that there is no duty to bargain over sanitary facilities since it is already obligated to provide them under the parties' agreement. It also asserts that there is no duty to bargain over shower facilities for mine inspectors because they are provided for in the parties' agreement. Finally, it claims that showers are not a condition of employment of non-inspection, administrative personnel and it, therefore, has no duty to bargain over them. B. Analysis and Conclusion With respect to this proposal, the Agency raises issues (1) as to its duty to bargain in the specific circumstances of this case; and (2) as to whether the proposal is negotiable under the Statute. Specifically, as to (1) the Agency asserts that insofar as the proposal is concerned with shower facilities for mine inspectors and sanitary facilities for all employees, it is outside the Agency's duty to bargain only because those matters are governed by provisions of the parties' agreement. It, therefore, asserts that disputes over these matters should be resolved through the parties' grievance procedures. Since the Agency's sole claim is that the proposal as regards showers for mine inspectors and sanitary facilities for all employees is outside of its duty to bargain in the 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). However, as to (2), to the extent that the proposal is concerned with shower facilities for non-mine inspection employees, the Agency contends that it is not within the duty to bargain because it is not a condition of employment for non-mine inspection employees. In construing the duty to bargain under the Statute, the Authority has found that proposals which concern matters directly affecting "the work situation and employment relationship" of bargaining unit employees are within the duty to bargain. See, for example, Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986); National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980). See also American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 606 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The explicit language of the proposal requires the Agency to negotiate over shower facilities for all employees including those who are not mine inspectors. However, as claimed by the Agency, we do not find anything in the record of the case which supports a finding that a shower facility is a matter which directly affects the work situation and employment relationship of non-mine inspection employees. Consequently, this is not the situation the Authority faced in American Federation of State, County and Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), where the Authority found Proposal XVI, regarding showers for custodians and groundskeepers who came into contact with dirt, dust, and chemicals in the course of their employment, to be within the duty to bargain. In this case there is no indication that non-mine inspection employees work in circumstances which would cause a shower facility to be a matter directly affecting their work situation and employment relationship. In the absence of any explanation by the Union as to how this proposal would relate to the conditions of employment of non-mine inspection employees, we find that the proposal concerns matters which are not directly related to their conditions of employment and is, therefore, outside the duty to bargain. See National Association of Government Employees, Local R5-168 and Department of the Army, Headquarters 5th Infantry Division and Fort Polk, Louisiana, 19 FLRA 552 (1985); see also Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA 890 (1985) (Proposals 1 and 2). VI. Proposal 6 A means shall be provided for handicapped persons to enter the office. A. Positions of the Parties The Union asserts that the intent of this proposal is to have the Agency implement and/or supplement the General Services Administration's (GSA) minimum requirements in order to make meaningful accommodations for handicapped persons. The Agency contends that this proposal would require bargaining on all means used to assist handicapped persons enter the building and would, therefore, conflict with sections 7103(a)(14)(C) and 7117(a) of the Statute to the extent that such a matter is specifically provided for by Federal statute and Government-wide regulations. Finally, the Agency contends that this proposal would apply to nonbargaining unit employees and to the general public and, consequently, is not a condition of employment. B. Analysis and Conclusions This proposal is within the duty to bargain. The Agency's contentions are without substance. The proposal clearly does not require bargaining on "all" means as claimed by the Agency. It simply requires that some means be provided. There is nothing in the record to indicate that the Union's proposal is inconsistent with the pertinent regulations regarding accommodations for the physically handicapped in 41 CFR subpart 101-19.6 or that this particular situation is covered by an exception outlined in 41 CFR Section 101-19.604. Further, we reject the Agency's contention that since a means of access provided under this proposal could be used by nonbargaining unit, handicapped employees and the general public, the proposal does not concern a condition of employment. A bargaining proposal which directly affects the conditions of employment of bargaining unit employees as this one and is otherwise consistent with applicable laws and regulations is within the duty to bargain despite the fact that it also may effect employees outside the bargaining unit. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (1986) (slip o. at 5), petition for review filed sub nom. American Federation of Government Employees, Local 32, AFL-CIO v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). Finally, the Agency does not contend that it is without discretion to implement the proposal or to recommend the matters proposed to the appropriate GSA official who would have the authority to effectuate recommendations concerning access to the office by the handicapped. Of course, if the Agency is without total discretion to implement the proposal, the Agency is obligated to bargain to the extent of its limited discretion. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). VII. Proposal 7 Suitable air conditioning and/or heat be provided in all working areas. A. Positions of the Parties The Agency essentially contends that because the proposal is vague it violates Government-wide regulations, namely, the Federal Property Management Regulations at 41 CFR 101-20.116-3 which mandate seasonal temperature ranges for the interior space of Government-owned or leased facilities. Citing Internal Revenue Service v. FLRA, 717 F.2d 1174 (7th Cir. 1983), it contends further that bargaining over the proposal would be inconsistent with the requirements of an effective and efficient Government and in conflict with section 2101(b) of the Statute because it will follow the same temperature regulations before and after the move and, consequently, will not have changed working conditions. The Union asserts that the new offices will be in a converted warehouse and that consequently this proposal is to ensure that a tolerable working climate will be maintained. It notes that use of the word "suitable" is not intended to require the Agency to vary from GSA guidelines. B. Analysis and Conclusion The Agency's contention that the proposal violates Government-wide regulations cannot be sustained. First, there is nothing in the record to indicate how or which regulation might be violated. Second, the Union specifically asserts that it does not intend the proposal to effect any variation from pertinent GSA regulations, e.g., 41 CFR Section 101-20.116-3, Cooling and heating energy conservation policies and procedures. This intended meaning is consistent with the language of the proposal and we adopt it for the purpose of this decision. Moreover, the Agency's reliance on the IRS case is misplaced. In that case, the U.S. Court of Appeals for the Seventh Circuit held that various agency modifications in existing office space to accommodate transferred employees were not material changes sufficient to give rise to an obligation to bargain over their impact and implementation. The court did not rule on whether the matters involved were within the statutory scope of mandatory bargaining. It was concerned only with whether the agency was under any obligation to bargain based on the circumstances. Consequently, the IRS case is inapposite to the question of negotiability with which we are concerned in this proceeding. As previously explained in II.B., the issues with which we are concerned here are whether the proposed language is inconsistent with applicable law, rule, or regulation and not whether there is an obligation to bargain under the particular circumstances of this office move. Finally, we find that the subject of the Union's proposal clearly involves a condition of employment. See American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA No. 81 (1986) (Proposal 13-Part E. 19). Further, the Agency has not demonstrated that this proposal conflicts with any law, rule or regulations. Accordingly, the obligation to bargain extends to this proposal. VIII. Proposal 8 Suitable parking be provided for government and private automobiles. A. Positions of the Parties The Union contends that this proposal seeks to ameliorate the impact of the relocation on parking for Government-owned vehicles (GOVs) and privately owned vehicles (POVs). It asserts that parking for GOVs and POVs was free and adjacent to the office at the old location while parking at the new location is several blocks away. Further, to support its assertion of negotiability it cites a FLRA decision by an administrative law judge (ALJ) ordering bargaining over parking spaces. The Agency disputes the Union's statement that parking for GOVs and POVs at the old location was free. Additionally, the Agency contends that the proposal would (1) require negotiations over the technical method of performing the Agency's mission under section 7106(b)(1); (2) conflict with Government-wide parking regulations set out in 41 CFR Sections 101-20.111 through 20.117-4 and (3) conflict with the Agency's right to determine its budget under section 7106(a)(1). The Agency also asserts that the proposal is inconsistent with an effective and efficient government under section 7101(b) and that the Union waived bargaining over parking for GOVs when it agreed to Article 17 (GSA Vehicles or Leased Vehicles) of the parties' agreement. Finally, the Agency asserts that the criteria to assign parking spaces to POVs is outlined in its parking regulations and that since these regulations are incorporated by reference into the parties' negotiated agreement (Article 2, Sections 1 and 6), there is no existing duty to bargain over this subject and the decision of the ALJ cited by the Union can be distinguished on this basis. B. Analysis and Conclusion As was discussed previously, any factual disputes between the parties are irrelevant to a determination concerning the negotiability of a particular proposal. Thus, we are not concerned in this proceeding with whether parking was free at the old location, whether the Union waived its right to bargain certain matters, and whether certain other matters are governed by the parties' existing agreement. We turn now to the claim that the proposal is inconsistent with law, rule, or regulation. The Agency's contentions that negotiations over the disputed proposal will be contrary to the Statute's admonition to promote an efficient and effective Government or will interfere with its choice of "technology" under section 7106(b)(1), and that the proposal conflicts with Government-wide and Agency parking regulations are not supported by the record presented. In particular, although the Authority has previously determined that GSA Federal Property Management Regulations as codified at title 41 of the Code of Federal Regulations generally constitute "Government-wide regulations" within the meaning of section 7117(a) of the Statute, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980), there is nothing in the record to indicate that the proposal would violate any provisions of title 41 of the CFR. /2/ Likewise, there is nothing to indicate that the disputed proposal would conflict with Agency parking regulations. The Authority has recognized that an agency's discretion regarding parking allocation may be limited. However, to the extent that the Agency has discretion to carry out the requirements of Proposal 8, even if its discretion is limited to requesting GSA to take appropriate action, it is within the duty to bargain. American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA No. 84 (1986) (Proposals 6 and 11). Finally, with regard to the Agency's contentions regarding this proposal's impact on its budget, the Authority has held that in order to establish that a proposal directly interferes with management's right to determine its budget, it is necessary for an agency either to show that the proposal prescribes the programs and operations to be included in the agency's budget, or the amount to be allocated for them, or to make a substantial demonstration that the anticipated increase in costs is significant and unavoidable and is not offset by compensating benefits. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). There is nothing in the record indicating that the proposal would either prescribe any program or operations or that it would increase costs significantly. Consequently, Proposal 8 is within the duty to bargain. IX. Order The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 2, 6, 7, and 8. /3/ The Union's petition for review as to Proposals 3 and 4 is dismissed. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union did not file a reply brief in this case. (2) The latest regulation governing federal employee parking is FPMR Amendment D-84, 52 Fed. Reg. 11, 263 (1987) (to be codified at 41 CFR Sections 101-20.104-101-20.104-4). (3) In finding these proposals within the duty to bargain, we make no judgment as to their merits.