48:0599(59)NG - - National Association of Agriculture Employees and Agriculture, Animal and Plant Health Ispection Service, Hyattsville, MD - - 1993 FLRAdec NG - - v48 p599

[ v48 p599 ]
The decision of the Authority follows:

48 FLRA No. 59














September 30, 1993


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), and concerns the negotiability of two proposals. For the reasons which follow, we find that Proposal 1, which relates to official time, is not properly before us. We further find that Proposal 2, which involves the assignment of employees to certain panels, is nonnegotiable. Accordingly, we will dismiss the petition for review.

II. Background

In July, 1991, as part of its Work and Family Life Program, the Agency began to develop policy and guidelines describing the procedures to be used to establish child care centers for each office within its Plant Protection and Quarantine activity. On November 24, 1992, the president of the Union was given the final draft of the Agency's Guidelines for Requesting Child Care Centers. Subsequently, the Union submitted three proposals concerning an aspect of the Guidelines. Under the Guidelines, panels were to be created to consider the establishment of child care centers. These panels were to consist of two employees from each work location considering the establishment of a child care center, an employee Union representative, and a regional management official. The Union's proposals related to the availability of official time for employees serving on the panels (Proposal 1), the designation by the Union of the three employee members of each panel (Proposal 2), and the use of the Union's name in all references to the Union (Proposal 3).

The Agency responded to each of the proposals. In a letter dated February 19, 1993, the Union's president replied that "we agree in principle" on Proposal 1 and that the Union agreed to specify the National Association of Agriculture Employees as the Union identified in Proposal 3. Statement of Position, Enclosure 4. However, the Union also stated that the parties disagreed over Proposal 2 and, as a result, the Union submitted a counter-proposal regarding Proposal 2. On March 9, 1993, the Agency responded to the Union's counter-proposal by stating that it was nonnegotiable. The Agency also stated, referring to the Union's February 19, 1993, letter, that "Union proposals Nos. 1 and 3 are resolved." Statement of Position, Enclosure 5. In this connection, the Agency noted that the parties met with a mediator from the Federal Mediation and Conciliation Service on March 3, 1993, and that "both parties indicated that Union Proposals Nos. 1 and 3 were resolved, [and] that agreement had been reached on those two proposals[.]" Petition for Review, Attachment 5 at 1 (emphasis omitted).

In a Union letter dated March 4, 1993, which the Agency apparently had not received prior to sending its March 9 letter, the Union stated that it was "agreeable to Management's counter-proposal to Union Proposal #1." Petition for Review, Attachment 2 at 1. The Union added, however, that it "propose[d] to restrict or narrow [Proposal 1] even further" to address concerns that had been raised by the Agency. Id. Accordingly, the Union submitted an amended Proposal 1, which added certain conditions to be taken into account by supervisors when granting official time for employee participation on the panels. The Union also submitted a modified Proposal 2, which retained the first two sentences of the previous Proposal 2, but added the phrase "subject to the conditions and limitations specified in Union Proposal #1 above." Id. at 2. The modified version of Proposal 2 also deleted the last sentence of the previous version of the proposal. The Union also modified Proposal 3 to add a condition suggested by the Agency in its February 19 letter. The Union then requested, among other things, that the Agency notify the Union of any assertion of nonnegotiability.

Subsequently, on March 22, 1993, the Agency responded to the March 4 letter. The Agency objected to the change made to Proposal 1, asserting that the parties had agreed on both Proposals 1 and 3. The Agency also stated that it had already provided its allegation of nonnegotiability with respect to the second sentence of Proposal 2 in its March 9 letter. Thereafter, by letter dated April 5, 1993, the Union advised the Agency that the three proposals, as modified by the Union's March 4 letter, "remain unanswered." Petition for Review, Attachment 6 at 1.

III. Petition for Review

On April 8, 1993, the Union filed its petition for review with the Authority. Contained therein are the Union's "counter-proposals" on Proposals 1 and 2.(*) Petition for Review at 1. In its statement of position, the Agency asserts that the issue in dispute concerns the second sentence of Proposal 2 and that because the Agency had made an allegation of nonnegotiability as to that portion of Proposal 2 in its March 9 letter, the petition for review is untimely. As to Proposal 1, the Agency cites the parties' prior agreement that that proposal, along with Proposal 3, had been resolved.

We find, first, that the conditions governing review of a negotiability appeal have not been met with respect to Proposal 1. Accordingly, we will dismiss the petition for review as to that proposal.

Under section 7117 of the Statute, and section 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. 5 U.S.C. § 7117(a); 5 C.F.R. § 2424.1. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987) (Labor). As indicated above, the Union seeks a negotiability determination on an amended version of Proposal 1. Our review of the record indicates that the Agency never declared the amended version of the proposal nonnegotiable. In other words, the Agency did not contend that the amended proposal was inconsistent with law, rule, or regulation. Instead, the Agency argued that the parties had reached agreement on a prior version of Proposal 1. Under the facts of this case, we find that there is no dispute before the Authority as to whether the amended version of Proposal 1 is within the parties' duty to bargain under section 7117 of the Statute. Therefore, we will dismiss the petition for review as to Proposal 1 without prejudice to the Union's right to file a negotiability appeal if the conditions governing review are met and the Union chooses to file such an appeal. See 5 C.F.R. Part 2424. See also National Treasury Employees Union and U.S. Department of Health and Human Services, Region X, Seattle, Washington, 46 FLRA 444 (1992), reconsideration denied, 46 FLRA 814 (1992).

Additionally, to the extent the Agency claims that there was no obligation to bargain over the amended Proposal 1 because the parties had reached agreement over a prior version of the proposal, such contention is not properly before us in this proceeding. Rather, the Agency's claim raises issues that are appropriate for resolution in other proceedings. See Labor, 26 FLRA at 769; 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).

We further find, as to Proposal 2, that the petition for review was timely filed and is properly before us for a decision.

The time limit for filing a petition for review of negotiability issues is 15 days after service on a union of an agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22.

The record in this case indicates that the Union submitted a revised version of Proposal 2 to the Agency in its March 4 letter. At that time, the Union requested that the Agency provide it with an allegation of nonnegotiability. The Agency responded by letter dated March 22, asserting that the proposal was inconsistent with management's rights under section 7106 of the Statute. The Authority's records indicate that the petition was filed on April 8, 1993. Consequently, the petition was timely filed and Proposal 2 is before us for a decision on the merits of the proposal. In reaching this result, we have determined that, although the Agency ultimately objected only to the sentence that it had previously declared nonnegotiable, the modified proposal was substantively different from the proposal that was declared nonnegotiable by the Agency in its March 9 letter. See, for example, National Federation of Federal Employees, Local 15 and U.S. Department of the Army, Rock Island Arsenal, Illinois, 43 FLRA 1165, 1167-68 (1992) (petition for review timely filed where amended proposals were substantively different from original proposals that were declared nonnegotiable).

IV. Proposal 2

There shall be a minimum of one bargaining unit employee on each panel. All bargaining unit employees on the panel shall be designated by [the Union], subject to the conditions and limitations specified in Union Proposal #1 above. [Only the underlined portion of the proposal is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency argues that the disputed portion of the proposal directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency notes that each panel will consist of two employee representatives, an employee Union representative, and a regional management official and that there is no dispute over the Union's right to choose the employee Union representative. However, the Agency challenges the Union's ability to choose the two employee members of the panel. The Agency also disputes the Union's claim that its ability to select only one employee representative on the panel will effectively negate the wishes of a majority of employees on child care options considered by the panel. The Agency states that the panel's function is to determine the needs of each work unit's employees for a child care center. Thus, if local management determines that a particular bargaining unit employee could constructively contribute to the panel's objectives because of that employee's interest or knowledge, it would want to appoint that employee to serve on the panel. The Agency argues that the disputed portion of the proposal would preclude management from assigning that employee to the panel because only the Union could designate bargaining unit employees.

The Agency further argues that the panel in this case is not a joint labor-management committee like the one under consideration in National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 670 (1992) (Defense Mapping Agency) (Proposal 5). The Agency states that the panel is designed to address child care needs at each worksite and would allow the Union to designate one representative on each panel.

2. The Union

The Union argues that the disputed portion of the proposal does not directly interfere with management's right to assign work. The Union asserts that the portion of the proposal incorporating the official time conditions set out in Proposal 1 signifies that an employee's supervisor retains the right to approve the use of an employee's official time to participate on the panel. According to the Union, the proposal would permit the supervisor to take into account staffing, workload, and other operational needs. In the Union's view, the ability of the supervisor to approve the use of official time renders the proposal negotiable.

The Union disputes the Agency's argument that the panel considering the child care needs of a particular worksite cannot be a joint labor-management committee. The Union asserts that the panel in this case will constitute such a committee and that the Agency is attempting to select three of the four members of each panel while limiting the Union's selection to only one employee. By reserving the right to appoint three of the four members on a panel, the Union argues that the Agency will be able to "stack the deck and effectively negate the majority's wishes (represented by the Union) on any options and proposals the panel considers." Response at 5. The Union argues that the parties' collective bargaining agreement confirms that the Union is the exclusive representative of the bargaining unit employees. Consequently, the Union maintains that when management requests input from or direct participation of bargaining unit members on subjects that affect their working conditions, but are not part of management's deliberative process, "it is the Union that is entitled exclusively to determine who from among the bargaining unit members are best suited to provide that input and/or participation." Id. at 6.

The Union adds that its proposal would allow it to designate the two employee representatives of each panel