U.S. Federal Labor Relations Authority

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36:0148(17)NG - - FEMTC of Charleston and Navy, Charleston Naval Shipyard, Charleston, SC - - 1990 FLRAdec NG - - v36 p148

[ v36 p148 ]
The decision of the Authority follows:

36 FLRA No. 17













June 25, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the requirement of a proposal that all observers who attend negotiation sessions be in non-duty status. For the reasons that follow, we find that the proposal is not within the Agency's obligation to bargain insofar as it applies to the duty status of nonbargaining unit employees because it does not vitally affect working conditions of bargaining unit employees.

II. The Proposal (Only the underscored portion is in dispute.)

Section 1: Negotiating Committee and Observers The negotiating team will consist of a Chief Spokesman and a number of members that is equal to, but does not exceed the number of management representatives present in a duty status during a negotiation session. There shall not be less than four (4) members and a Chief Spokesman. However if the Union team uses a unit member as its Chief Spokesman, they are only allowed the same total number as management including the Chief Spokesman on official time, provided there is no compelling need for the employee's services. If the employee cannot be spared, the Union Chief Spokesman will be able to request that negotiations be recessed until the team member(s) can be spared.

Each team shall identify its Chief Spokesman and alternate Chief Spokesman for the negotiations; each team reserves the right to make substitutions or changes to its team. The Union Chief Spokesman will notify the Management Chief Spokesman of its team changes as soon as possible prior to the date of the changes. Notification of less than five (5) work days may impact availability of the employees.

Observers to negotiation sessions shall remain silent. No more than two (2) observers called by each team may attend a session unless mutually agreed to by the Chief Spokesman. No one observer will attend more than ten (10) negotiating sessions. Observers who attend a negotiating session must be in a non-duty status, (i.e., annual leave, LWOP, time outside their hours of work). Each Chief Spokesman shall identify their observers.

Each party may have a subject matter expert. This expert will be made available on an as needed basis to address specific issues under consideration by the negotiating teams and such experts who are unit employees shall be authorized official time during the time the employees would otherwise be in a duty status.

III. Positions of the Parties

The Agency contends that the disputed portion of the proposal does not concern a condition of employment within the meaning of the Statute insofar as it applies to nonbargaining unit individuals who serve as management observers at negotiations. Consequently, the Agency asserts that the disputed portion of the proposal is not within the duty to bargain. Additionally, the Agency argues that the disputed portion of the proposal would effectively preclude the Agency from assigning employees the "official work" of attending negotiations as a management observer. Agency Statement of Position at 3. In this regard, the Agency contends that it can neither require employees to perform official duties in a non-duty status nor, under 31 U.S.C. § 1342 and 5 U.S.C. § 3111, allow employees to volunteer for such duties.

The Union describes the disputed portion of the proposal as seeking equality between Agency and Union observers consistent with section 7131(a) of the Statute. The Union states that the purpose behind its desire to have observers at negotiations is to afford bargaining unit employees "the opportunity to view how the rules are made." Union Reply Brief at 4. The Union further states that Agency "visitors . . . [who] would not participate in the negotiations would be welcome under this proposal." Id. at 5. However, the Union contends that "[i]f management is paying their observers . . . they are management representatives at negotiations." Id. at 3. Consequently, according to the Union, allowing Agency observers to be in a duty status would "offset the balance of a equal number of representatives." Id. at 5. The Union describes the proposal as serving "to invoke the provisions of 5 U.S.C. 7131(a) and allow the union additional representatives on official time to offset the imbalance if one occurs." Id. The Union denies that its proposal interferes with management's rights.

IV. Analysis and Conclusion

Under section 7131(a) of the Statute, employees representing an exclusive representative in the negotiation of a collective bargaining agreement are entitled to official time for such purpose. Under that section, the maximum number of employees who are entitled to official time shall not exceed, and is consequently determined by, the number of individuals designated to represent the agency. Management has no duty to bargain over the number of representatives it will designate to carry out its duty to bargain under the Statute. National Federation of Federal Employees v. FLRA, 652 F.2d 191 (D.C. Cir. 1981). Thus, an agency is not obligated to bargain over the number of union representatives who will be entitled to official time under section 7131(a) of the Statute. However, the Authority has held that a proposal seeking official time for additional union representatives, beyond the number that would be entitled to official time under section 7131(a), is within the duty to bargain under section 7131(d). For example, Antilles Consolidated Education Association and U.S. Navy Department, Puerto Rico, 21 FLRA 975 (1986).

From the parties' submissions it appears that they have agreed that, in addition to the members of the respective negotiation teams, "observers" may attend the negotiation sessions. It is not clear from the parties' submissions or the proposal itself what role the "observers" would play at the negotiations. Consequently, the record does not provide any basis for concluding whether the observers for either party could be viewed as "representing" that party in the negotiation of a collective bargaining agreement within the meaning of section 7131(a) of the Statute and whether the Union's observers could be eligible for the official time entitlement provided by section 7131(a).

In any event, although it appears from the Union's submissions that the Union hopes indirectly to obtain official time for its observers through this proposal, this is not what the proposal, as written, provides for. Rather, as written, the proposal simply requires that both the Union's and Agency's "observers" be in a non-duty status. The Agency's allegation of nonnegotiability relates to the applicability of that requirement to Agency observers. Therefore, we view the issue before us as being whether there is a duty to bargain over a proposal that Agency observers attending negotiation sessions do so in a non-duty status.

It is uncontested that the Agency's observers would not be bargaining unit employees. In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335, 338 (1988) (Office of Personnel Management), enf'd sub nom. Office of Personnel Management v. FLRA, No. 88-1901 (D.C. Cir. June 15, 1990), the Authority established the test to be applied in deciding the negotiability of proposals concerning conditions of employment of bargaining unit employees when the proposals also affect employees or positions outside the bargaining unit. The Authority found that under the scheme established by sections 7103(a)(12), 7106, 7114, and 7117 of the Statute, a proposal concerning a condition of employment of bargaining unit employees is negotiable if it is consistent with Federal law, Government-wide regulations, and agency regulations supported by a compelling need.

The Authority noted that the term "conditions of employment" is defined in section 7103(a)(14) as follows:

[P]ersonnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by Federal statute[.]

The Authority determined as well that, in cases that do not involve an exclusion from the statutory definition of "conditions of employment," if extra-unit interests are involved only one factor will be examined in deciding whether a proposal concerns a condition of employment of bargaining unit employees: Whether the proposal vitally affects the working conditions of employees within the bargaining unit. 33 FLRA at 338.

The Authority concluded in Office of Personnel Management that a proposal concerning the conditions of employment of bargaining unit employees that also affects employees or positions outside the bargaining unit is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulations. The Authority additionally stated that the proposal's effect on nonunit employees or positions is not a factor in making the negotiability determination and that prior decisions inconsistent with the described approach would no longer be followed. Id.

Here, the record provides no basis for concluding that placing the Agency's observers in a non-duty status would vitally affect the conditions of employment of bargaining unit employees. The duty status of personnel attending contract negotiations on behalf of an agency is determinative of the duty status of bargaining unit employees attending on behalf of a union only to the extent that section 7131(a) entitles the Union to a number of representatives on official time equal to the number of agency representatives. As noted earlier, the number of Agency representatives is not a matter that is within the Agency's duty to bargain. The duty status of any other Union attendees at negotiations would be subject to the provisions of section 7131(d) of the Statute, which authorizes bargaining over official time in specified circumstances for employees representing, or represented by, an exclusive representative. Under this statutory scheme, requiring that Agency observers be in non-duty status is not necessarily determinative of the duty status of the Union observers.

The Union describes the proposal's effect as "keep[ing] the number of representatives present equitable and in the same status, which should enhance negotiations and assist in leading to a good faith effort to reach quick and effective agreement." Union Reply Brief at 5-6. Under the "vitally affects" test, a claimed impact on, or significance to, bargaining-unit-employee interests that is speculative, insubstantial, or uncertain does not bring a proposal within the duty to bargain. Compare Allied Chemical & Alkali Workers v. Pittsburg Plate Glass Co., 404 U.S. 157, 180 (1971) (in which the application of the "vitally affects" test in the private sector was discussed). Under the "vitally affects" test, "[a]n indirect or incidental impact on unit employees is not sufficient to establish a matter as a mandatory subject. Rather, mandatory subjects include only those matters that materially or significantly affect unit employees' terms and conditions of employment." Star Tribune, 295 NLRB No. 63 (June 15, 1989) (discussing the NLRB's definition of the "vitally affects" test) (quoting United Technologies Corp., 274 NLRB 1069, 1070 (1985), enf'd, 789 F.2d 121 (2d Cir. 1986)).

Here the Union's claim that placing Agency observers in a non-duty status would expedite negotiations is, in our view, purely speculative and the likelihood of that result is, at best, uncertain. Furthermore, we are unable to determine how requiring the Agency's observers to be in a non-duty status would have any certain, or likely, substantial effect on the working conditions of bargaining unit employees. In this regard, as it is not clear based on the record what, if any, substantive or other role the Agency's observers would have in the negotiation process, the effect of their presence at, or absence from, negotiation sessions is purely speculative. Assuming that observers for the Agency were present at the negotiations, the effect of their duty status on their conduct or the conduct of the members of the respective bargaining teams at negotiations or, more importantly, the course of the negotiations, also is entirely speculative and uncertain.

Because there is no showing that the proposal would materially or significantly affect the conditions of employment of bargaining unit employees, insofar as it requires Agency observers to be in a non-duty status, we conclude that the disputed portion of the proposal does not vitally affect the working conditions of bargaining unit employees so as to give rise to a duty to bargain. Compare American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA No. 112 (1990), where we held that Proposal 2, which defined the competitive area for reduction-in-force purposes, vitally affected the working conditions of unit employees. Therefore, we find that the disputed portion of the proposal is outside the Agency's duty to bargain.(*) In view of this conclusion, it is unnecessary to address the Agency's argument that the proposal would effectively prevent it from assigning employees to attend negotiations as agency observers.

V. Order

The Union's petition for review is dismissed.

(If blank, the decision does not have footnotes.)

*/ We do not address whether the Union's observers could be entitled to official time under section 7131(a) of the Statute or whether official time for them could be negotiated under section 7131(d). Based on the wording of the proposal, those questions are not before us and, moreover, the record in this case is insufficient to make such determinations.