39:0291(22)NG - - NFFE Local 2050 and EPA - - 1991 FLRAdec NG - - v39 p291

[ v39 p291 ]
The decision of the Authority follows:

39 FLRA No. 22




LOCAL 2050








January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of four proposals submitted by the Union in connection with a relocation of employees in the Agency's Office of Radiation Programs. The Agency did not file a Statement of Position.

Proposal 4(d) would require that certain employees be relocated to space containing windows if renovations are not completed within a specified period of time; Proposal 13(g) would require automatic garage doors with an alarm system if there is access to a garage within 100 feet of the basement holding area; Proposal 14(a) would require that certain employees be provided with private offices; and Proposal 14(c) would require that offices have doors with combination locks. For the following reasons, we find that all four proposals are negotiable.

II. Proposal 4(d)

If renovations are not completed within a two month period, employees located in the lower concourse "holding area" shall be relocated to space containing windows and which meets the provisions of this agreement.

A. Positions of the Parties

As the Agency did not file a statement of position, its position is taken from the written allegation of nonnegotiability it furnished the Union. In that allegation, the Agency asserts as follows:

Management does not agree to this proposal as it requires a guarantee that additional space will be available, that the space will have windows for each bargaining unit employee, and such space will be available in two months. Further, management fails to see the "substantial impact" of not moving the people back until renovations are completed, whether its two months or more. In addition, [the Union] can not negotiate implementation dates.

Memorandum from Agency to Union at 3 (June 11, 1990) (hereinafter Memorandum to Union).

The Union states only that "[t]he negotiability appeal regarding (4)(d) is for the last sentence in management's response." Petition for Review, Attachment.

B. Analysis and Conclusions

Proposals which address reductions in office space, space allocation, and the arrangement of space concern conditions of employment and are negotiable unless an agency demonstrates that the proposals are inconsistent with law or regulation. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 413 (1990).

The Agency appears to assert that the proposal is nonnegotiable because the Union "can not negotiate implementation dates." Memorandum to Union at 3. That contention is misplaced. Proposal 4(d)'s reference to a 2-month period merely identifies when Proposal 4(d) is to take effect. It does not require renovations to be completed by any particular date and does not delay implementation of the renovations.

The parties bear the burden of creating a record upon which the Authority can make a decision. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE Local 1167 v. FLRA), aff'g sub nom. 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 meet its burden acts at its peril. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Pay Center Locals, Local 1760, 36 FLRA 466, 475 (1990) (SSA).

The Agency makes no claim that this proposal directly interferes with a management right under section 7106(a) of the Statute, or is otherwise inconsistent with law or regulation. Because the Agency has not established that Proposal 4(d) is nonnegotiable, and no basis for finding the proposal nonnegotiable is apparent to us, we conclude that the proposal is within the duty to bargain.

III. Proposals 13(g) and 14(c)

Proposal 13(g)

If there is access to a garage within 100 feet of the basement holding area, the Agency shall provide doors to the garage which close automatically and provide an alarm system which will go off if the doors remain open longer than three minutes.

Proposal 14(c)

Each office shall have a door with a combination lock.

A. Positions of the Parties

The Agency contends that Proposal 13(g) is nonnegotiable because "it interferes with management's right to determine the security practices of the Agency." Memorandum to Union at 11. The Agency asserts that Proposal 14(c) is nonnegotiable because it "interferes with management's right to decide security practices." Id. at 12. According to the Agency, "[m]anagement will make the determination as to what offices require security and which offices do not." Id. In its petition for review, the Union failed to provide a statement of its position with respect to these proposals.

B. Analysis and Conclusions

Internal security practices include those policies and actions that are part of an agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 713 (1990). The Agency asserts that Proposals 13(g) and 14(c) interfere with its right to determine internal security practices. The Agency has not, however, asserted or demonstrated that eit