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49 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1418

(Union)

and

UNITED STATES INFORMATION AGENCY

VOICE OF AMERICA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1812

(Intervenor)

0-NG-1613

(37 FLRA 1385 (1990))

_____

DECISION AND ORDER ON REMAND

June 10, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in United States Information Agency, Voice of America v. FLRA, 960 F.2d 165 (D.C. Cir. 1992) (USIA II). The court remanded the case "so the [Authority] may reconsider its finding that the jurisdictional proposal constituted a mandatory subject of bargaining" and for "a fuller explanation" of the Authority's interpretation of section 704(a) of the Civil Service Reform Act (CSRA), codified at 5 U.S.C. § 5343 note, as applied to the facts of this case. Id. at 171 and 170, respectively. The court also directed that, on remand, the Authority should "explain, with record evidence, whether the proposal alters the [National Federation of Federal Employees' (NFFE's)] and the [American Federation of Government Employees' (AFGE's)] bargaining units[.]" Id. at 171.

On remand, we conclude that sections 2, 4, 5, and 6 of the proposal are negotiable under section 704(a) of the CSRA. We also conclude that sections 3 and 7 of the proposal are not preserved for negotiation under section 704(a) of the CSRA and are nonnegotiable under the Statute. Finally, we conclude that section 1 of the proposal is negotiable only to the extent that the other sections of the proposal are negotiable.⁽¹⁾

II. Background

This case concerns radio broadcast technicians (RBTs or technicians) involved in the operation of the United States Information Agency, Voice of America (VOA) worldwide broadcasting network. The RBTs work at VOA in the Washington, D.C. headquarters, the New York City News Bureau, and the Los Angeles News Bureau. The technicians are "prevailing rate" employees who are covered by section 9(b) of the Prevailing Rate Systems Act (PRSA), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 note. See International Communication Agency, 5 FLRA 97, 99 (1981). See also United States Information Agency, Voice of America, 33 FLRA 549, 550 (1988) (USIA, VOA I), remanded by 895 F.2d 1449 (D.C. Cir. 1990) (USIA I), decision on remand, United States Information Agency, Voice of America, 37 FLRA 849 (1990) (USIA, VOA II). The Union representing the technicians negotiates their terms and conditions of employment and pay and pay practices pursuant to section 704 of the CSRA.

As relevant to this case, section 704(a) of the CSRA provides generally that those terms and conditions of employment and other employment benefits, with respect to prevailing rate employees to whom section 9(b) of the PRSA applies and which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after October 13, 1978, in accordance with the provisions of section 9(b), without regard to the provisions of the Federal Service Labor-Management Relations Statute (the Statute).⁽²⁾ See USIA, VOA II; Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville).

III. Proposal

The text of the Union's proposal is set forth in full in Appendix B to this decision. The proposal, entitled "Jurisdiction," describes the work that, under the proposal, would be performed exclusively by RBTs in the bargaining unit for which the Union holds exclusive recognition. The "[w]ork described in the proposal as being within the Union's jurisdiction could not be assigned by the Agency to employees outside the bargaining unit." Petition for Review at 2. Under the proposal, RBTs would be responsible for the operation of all technical equipment associated with the broadcast of VOA programs, including the computer and automation systems which assist in the broadcast or routing of VOA programs.

The "Introduction" section of the Union's proposal (Section 1) constitutes an agreement that the parties (the Agency and the Union) have engaged in substantive negotiations concerning "jurisdiction over the operation of technical equipment" by RBTs prior to August 19, 1972. The proposal then describes the work that will be performed by RBTs at the VOA in the Washington, D.C. headquarters, the New York City News Bureau, and the Los Angeles News Bureau. Under the proposal, RBTs would be responsible for the operation of all technical equipment associated with the broadcast of VOA programs. The proposal provides also that the computer and automation systems which assist in the broadcast or routing of VOA programs are technical equipment which shall be operated by RBTs.

The proposal would have the effect of precluding the Agency from assigning the work described in the proposal to employees who are not in the bargaining unit represented by the Union. Different sections of the proposal would govern technicians' assignments in Master Control (Section 2), World Operations Control (Section 3), Studios (Section 4), Central Recording (Section 5), and Technical Support (Section 6). The proposal also lists the equipment that is not within the RBTs' exclusive jurisdiction and, thus, "may be operated by either technicians or non-technicians" (Section 7).

IV. Decision and Order in 37 FLRA 1385

In National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America, 37 FLRA 1385 (1990) (NFFE and USIA), the Authority found that the proposal here in dispute concerned the subject of work jurisdiction. We concluded that the subject of work jurisdiction for RBTs was a matter which was the subject of negotiation between the parties in accordance with prevailing rates and practices prior to August 19, 1972. We found that the notes of the parties' labor-management meetings on July 7, 1966, and October 11, 1967, which were prepared by management and signed by both parties, showed that the parties negotiated over work jurisdiction for RBTs prior to August 19, 1972. In particular, we found that section 2-15 of the 1966 and 1967 meeting notes provided that all technical equipment in the studio and control room--referred to as "the Studio Control Room" in the 1967 meeting notes--"shall be operated by technical personnel only." NFFE and USIA, 37 FLRA at 1392 (quoting section 2-15 of meeting notes). We also found that the meeting notes demonstrated that the parties negotiated and that the Union and the Technical Services Division of the Agency reached agreement, subject to ratification by the Agency, concerning the operation of technical equipment by technical personnel prior to August 19, 1972. We determined that by providing that all technical equipment in Master Control, the World Operations Control Center (WOCC), Studios, Central Recording, and Technical Support shall be operated exclusively by technical personnel, the jurisdiction proposal at issue in this case concerned the same subject matter as section 2-15 of the meeting notes.

We distinguished U.S. Department of Interior, Bureau of Indian Affairs v. FLRA, 887 F.2d 172 (9th Cir. 1989) (BIA) and found that U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Reclamation) was not controlling in NFFE and USIA. We noted that in BIA and Reclamation, the courts had disagreed with the Authority's interpretation of section 704 of the CSRA and reversed the Authority's conclusions that certain provisions concerning the pay and pay practices of prevailing rate employees were negotiable under section 704.

We also rejected the Agency's arguments that the proposal concerned nonbargaining unit employees and that the proposal vitally affected employees in positions outside the bargaining unit. Because we found that the proposal concerned the work jurisdiction of unit employees, we concluded that the proposal merely sought to define bargaining unit technicians' responsibilities in light of changes in the Agency's operation and was not an attempt by the Union to expand its bargaining unit. Additionally, we rejected the Agency's arguments that negotiation of the proposal was barred by: (1) Executive Order 10988; (2) section 704(b) of the CSRA; or (3) section 7106 of the Statute. Therefore, we concluded that the Agency was obligated to bargain concerning the Union's work jurisdiction proposal under section 704(a) of the CSRA.

V. Court's Decision

In USIA II, the court found that "[o]n the present record, [it could not] determine whether the Authority made 'findings that support its decision' and 'articulate[d] [a] rational connection between the facts found and the choice made.'" USIA II, 960 F.2d at 170 (quoting Burlington Truck Lines v. United States, 371 U.S. 156 (1962)). The court stated that in determining whether the Union's proposal is negotiable, "'the critical inquiry [under section 704(a)] is whether the proposed subject for negotiation is a matter that was negotiated by the parties prior to August 19, 1972.'" Id. at 169 (quoting USIA I, 895 F.2d at 1453). The court found that in concluding that the proposal was negotiable under section 704(a), the Authority did not "address the thorny interpretive question of how squarely a current proposal must fit within the corners of a pre-1972 subject of negotiation for the former to be grandfathered by [section] 704(a)." Id. The court therefore remanded the case to the Authority. The court also stated that it was necessary to remand the case to the Authority to "reconsider [the Authority's] use of the vitally affects test, which [the court] recently clarified" in U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). Id. at 170.

VI. Factual Hearing before the Administrative Law Judge

On September 22, 1992, having concluded that a hearing was necessary to resolve the issues remanded to the Authority in USIA II, the Authority issued an Order transferring this case to the Chief Administrative Law Judge for assignment to an Administrative Law Judge. The Authority ordered that a full and complete record be developed and findings of fact be made relating to ten issues set forth in the Order. Pursuant to AFGE's motion that it be given an opportunity to be heard in this case and to submit additional evidence, the Authority directed that AFGE, Local 1812 be permitted to intervene, within the meaning of section 2421.12 of the Authority's Rules and Regulations, in the hearing before the Administrative Law Judge. By agreement of the parties, a hearing was conducted at which the parties were afforded a full opportunity to adduce evidence, call, examine, and cross-examine witnesses and fully develop a factual record. The parties also filed with the Judge proposed findings of fact and replies to the proposed findings of fact which addressed the issues submitted to the Judge in the Authority's Order.

After considering the evidence and testimony presented at the hearing and the parties' proposed findings of fact and replies thereto, the Judge issued a Report of Findings (Judge's Report), wherein he made findings of fact concerning the issues set forth in the Authority's Order.⁽³⁾ The parties filed comments on the Judge's Report and post-hearing briefs which have been considered in this case.

We have reviewed the Judge's Report and find that no prejudicial error was committed in the conduct of the hearing or the rulings made by the Judge at the hearing. Upon consideration of the Judge's Report, the parties' comments and post-hearing briefs, and the entire record, we adopt the Judge's findings.

VII. Positions of the Parties

A. Agency

1. Proposal Does Not Concern Terms and Conditions of Employment

The Agency contends that the Union's proposal does not concern the terms and conditions of employment of bargaining unit employees because the proposal alters NFFE's and AFGE's bargaining units. The Agency states that "[a]lthough [section] 704(a) [of the CSRA] authorizes negotiation 'without regard to any provision of Chapter 71 of Title V [of the United States Code,'] it nonetheless authorizes such negotiations only as to 'terms and conditions of employment.'" Agency's Brief at 24 (citations omitted). The Agency states that section 7103(a)(14)(C) of the Statute defines "conditions of employment" to exclude matters that are specifically provided for by Federal statute. The Agency asserts that bargaining unit status is specifically provided for by statute and is expressly nonnegotiable under sections 7111 and 7112 of the Statute.

2. Proposal Regulates AFGE Unit's Conditions of Employment

The Agency argues that the proposal regulates the conditions of employment of certain AFGE-represented employees. The Agency asserts that, under the proposal, "the representational rights of the 12 AFGE-represented non-RBTs in Radio Marti would be currently negotiated by NFFE[.]" Id. at 61. The Agency claims that "[t]he 10 NCC [Network Control Center] non-RBTs would be totally displaced by the proposal's giving RBTs the exclusive right to 'operate, maintain and/or otherwise be responsible for' all NCC and SIS [Satellite Interconnect System] equipment." Id. The Agency also claims that "[t]he 3 [Sound on Demand (SOD)] non-RBTs would be entirely displaced." Id. at 62. The Agency asserts that the proposal would eliminate much of the field activity of the Agency's approximately 1,100 non-technicians, including but not limited to correspondents, and "unless field RBTs were hired in substantially greater numbers to accompany non-technicians into the field, non-technicians would no longer be able to obtain recorded sound for use in their programs in the vast majority of their non-interview field events." Id. at 62. The Agency also asserts that the proposal would "impact directly on the substance of [the non-technicians'] programs[]" and "fundamentally change[]" "the nature of the work that international radio broadcasters, correspondents and reporters have done since at least the 1960s[.]" Id. The Agency claims that "[w]ith regard to the operation of studio equipment in the domestic bureaus in Chicago and Miami, . . . the proposal would have affected five AFGE-represented personnel as of 1988." Id.

The Agency states that "[w]hether the NFFE proposal affects the working conditions or the . . . scope of AFGE's bargaining unit is an inquiry central to deciding whether that proposal is negotiable." Id. at 63. The Agency asserts that "[b]y ignoring the extra-unit effects of its proposals and likewise seeking to block consideration of the full array of standards applied in deciding jurisdiction, NFFE attempts to save its proposal from the full scrutiny to which it must be subjected." Id. at 64.

3. Work Preservation Doctrine Is Not Applicable

The Agency argues that the work preservation doctrine invoked by NFFE has no application to the resolution of this negotiability appeal. The Agency asserts that NFFE's argument with regard to the work preservation doctrine "is disingenuous and legally wrong." Id. at 65. The Agency further asserts that "[t]he [National Labor Relations Act (NLRA)] authority upon which NFFE builds its case is directed at an entirely different legal issue than the one that is at the core of this case, and it invokes a legal analysis that the [National Labor Relations Board (NLRB)] itself would not apply to this dispute if it were to arise in an NLRA setting." Id.

4. Section 1

The Agency maintains that the subject matter of the Union's proposal concerns the acquisition of work assigned to non-technicians and that the parties did not negotiate that subject prior to August 19, 1972. The Agency asserts that "[t]he subject of [section] 2-15 was not 'the work traditionally performed by RBTs' generally, but only Studio Branch RBTs' work." Id. at 43. The Agency argues that "at most, the pre-1972 discussions were over only a fraction of the RBTs' work, and not NFFE's or the RBTs' 'work jurisdiction.'" Id. (emphasis omitted). The Agency maintains that section 2-15 "is unlike the private sector radio broadcast industry, wherein 'work jurisdiction' clauses defined the full scope of work claimed by the unit, not simply one fraction of it and described it in an exhaustive and comprehensive detail." Id. (citations omitted). The Agency asserts that "[e]ven if one accepts NFFE's broad characterization of the pre-1972 subject . . . [as] preservation of NFFE's traditional work[,] th[at] characterization of the 1988 proposal is not borne out by the facts" because "[t]he proposal covers work never performed by RBTs[.]" Id.

The Agency states that it "has maintained from the outset of these proceedings that the subject of [section] 2-15 of the Union meeting notes (the only notes raised by NFFE in initiating this appeal) was not negotiated." Id. at 52. The Agency notes that in NFFE and USIA, the Authority found that the subject of section 2-15 was negotiated. However, the Agency maintains that the Authority's finding was based on factors, which were not "finding[s] specific to [section] 2-15." Id. (footnote omitted). The Agency also notes that in USIA II "[t]he D.C. Circuit simply noted without comment that the [Authority] had relied on the notes as 'dispositive.'" Id. at 52-53 (citation omitted). The Agency asserts that "[p]ursuant to [the Authority's] instruction to develop a complete record on how the notes 'governed' the subsequent relations of the parties,'" the Judge made specific factual findings concerning section 2-15 and section 2-16 of the meeting notes which "are accurate and totally inconsistent with a finding that [section] 2-15 was negotiated." Id. at 53.

The Agency argues that "the 1968 contractual reference to the subjects in [U]nion meeting notes as 'conclusions' to 'remain in effect until changed or superseded,' is ambiguous at best." Id. at 54. The Agency also argues that the Authority's ruling in USIA, VOA I, 33 FLRA at 555-58, that the Union meeting notes provided evidence of pre-1972 negotiations on the subject of preparation and cleanup time, "is not controlling in this case, given its separate and totally distinguishable set of facts." Id. The Agency asserts that "[t]he preponderance of the record evidence now before the Authority is inconsistent with a finding that the notes at issue here were negotiated." Id. at 55. The Agency contends that "[i]n light of the extensive record on the notes themselves and their irrelevance to the parties' subsequent relationship," the testimony of the Union's witness "as the only eyewitness to the meetings becomes less critical to a ruling on the existence of pre-1972 negotiations." Id. Based on the foregoing, the Agency contends that the Union "has failed to meet its burden of proving that [section] 704's requirement of pre-1972 negotiations took place, and the 1988 proposal should be found [non]negotiable on this basis as well." Id. at 56-57.

According to the Agency, the Union's proposal to negotiate over the preservation of work performed by RBTs "would expand the scope [of bargaining] to the four remaining branches to which RBTs are assigned, Master Control, Central Recording, Field and Maintenance." Id. at 41. The Agency asserts that "because the proposal encompasses all [Operations Management Division (OMD)] branches[,] it exponentially expands the scope of bargaining beyond pre-1972." Id. at 42. The Agency contends, therefore, that "the proposal fails to meet the requirements of [section] 704 even as it relates to claiming exclusive jurisdiction over work in OMD branches to which RBTs are assigned." Id. The Agency argues that, even assuming that the Union's proposal meets the requirements of section 704, the proposal is nonnegotiable because it regulates the conditions of employment of employees in the collective bargaining unit represented by AFGE and vitally affects the terms and conditions of employment of those employees.

5. Section 2

The Agency states that section 2 of the proposal provides that RBTs assigned to the Master Control Branch shall "'operate, maintain or otherwise be responsible for all equipment associated with . . . the routing of audio'" and "'shall also operate and/or be responsible for computer and automation systems which assist in the broadcast or routing of audio[.]'" Id. at 43-44 (emphasis omitted). The Agency argues that, as written, section 2 of the proposal covers the computer and the automation systems in the Traffic Division, which are the responsibility of AFGE-represented personnel. The Agency acknowledges that NFFE has stated that section 2 covers only "Master Control's 'down loading of the switching schedule produced in the Traffic Management Division,' but 'not [the] Traffic Management Division['s] computer system.'" Id. at 44 n.18 (citations omitted). However, the Agency states that NFFE's statement should be considered "irrelevant for purposes of the negotiability determination," because the Union did not provide that interpretation of section 2 until the hearing. Id.

6. Section 3

The Agency contends that section 3 of the proposal does not address the same subject as section 2-15 of the meeting notes and is, therefore, nonnegotiable. The Agency states that section 3 of the proposal covers technical equipment associated with work performed in the NCC, formerly the WOCC. According to the Agency, "[t]he technical equipment associated with the work performed in the NCC, was owned and operated by outside contractors up to 1988 upon VOA's creation of the NCC, and thereafter, operated by AFGE-represented telecommunications specialists in the NCC." Id. at 45. According to the Agency, the "NCC has displaced most and soon all of such outside [contractors]." Id. at 46. The Agency states that the duties associated with the NCC "entail the operation of extensive and sophisticated telecommunication, transmission, computer and monitoring equipment, including the Satellite Interconnect System, located in the Washington, D.C. plant within the NCC as well as in domestic and foreign relay stations and transmitter sites." Id. at 45-46. The Agency asserts that "[n]one of the equipment associated with the . . . duties [in NCC] was at any time operated by RBTs." Id. at 46.

The Agency states that prior to the establishment of the NCC, "RBTs received telephone calls (or telefaxes) from relay stations experiencing transmission problems, upon which the RBT would telephone the outside vendor for the vendor, in turn, to 'troubleshoot' the problem." Id. According to the Agency, the RBT, if requested, would establish a telephone back-up transmission until the outside vendor fixed the problem. The Agency also states that "the equipment that conducts automated frequency and noise distribution tests, that was previously the responsibility of the RBTs, entailing no 'operation' by them, resides in the NCC." Id. at 46-47 (citations omitted). The Agency asserts, however, that these RBT tasks are only remotely associated with the NCC operations and did not involve the operation of technical equipment.

The Agency argues that section 3 is nonnegotiable because it "encompasses an entire network of technical equipment, in VOA headquarters and around the world, [that was] never operated by RBTs." Id. at 47. The Agency contends that it is unnecessary to determine whether the proposal would be negotiable if it were interpreted consistent with NFFE's clarification of its proposal after the hearing in 1992 "(a) to cover only 'those portions and operations of the NCC . . . located in Washington, D.C. and . . . perform[ing] tasks previously done by [RBTs] in Master Control,' and (b) not to cover SIS equipment at transmitter sites and relay stations." Id. The Agency asserts that "NFFE's 'clarification' makes clear how overbroad the proposal is, covering work not traditionally, indeed never, previously performed by RBTs." Id.

7. Section 4

The Agency contends that section 4 of the proposal "is overbroad, is not the same as [section] 2-15 [of the meeting notes] and[,] for this reason[,] . . . is [non]negotiable." Id. at 49. The Agency asserts that "NFFE has stated categorically that '[t]he Union has never claimed that its traditional work jurisdiction extended beyond the Washington headquarters of VOA, the New York News Bureau and the Los Angeles News Bureau.'" Id. at 48 (quoting NFFE Supplemental Statement at 35). The Agency states that the Judge also found that the duties of studio RBTs have never included the operation of any studio equipment in Radio Marti or in bureaus, domestic or foreign, other than New York or Los Angeles. The Agency also states that "the fact that [Radio Marti] was a creation of special legislation, alone warrants a ruling that the proposal is [non]negotiable under the authority of [BIA and Reclamation]." Id. at 49 (citation omitted). Finally, the Agency asserts that the "RBTs' duties have never included the Language and Area Production Studios ('LAPS')." Id. The Agency states that RBTs were temporarily assigned to VOA Europe at its start-up in 1985. The Agency asserts that some of the studios in VOA Europe do not have studio control rooms. The Agency argues that, like the domestic bureaus (except New York), these studios "are outside NFFE's traditional work, both organizationally and operationally." Id.

8. Section 5

The Agency asserts that Section 5 of the proposal "claims for the exclusive jurisdiction of Central Recording RBTs 'the [SOD] facility,' without qualification as to what equipment" in SOD was traditionally operated by RBTs. Id. (emphasis omitted). The Agency claims that the "RBTs' duties have never included the operation of equipment in [SOD]." Id. The Agency argues that, by claiming exclusive jurisdiction over all SOD equipment, the proposal claims jurisdiction over equipment that RBTs have never operated, including editing equipment and the SOD's electronic-distribution system (IGM). The Agency notes that "NFFE belatedly disclaims any interest" in editing equipment and the SOD's electronic-distribution system. Id. at 50. The Agency also notes that the Judge adopted NFFE's claim that the proposal "only 'addresses the operation of recording equipment in [SOD].'" Id. at 50 n.19. The Agency argues that the Authority should reject NFFE's claim and the Judge's finding because both are "inconsistent with the plain meaning of the proposal." Id. The Agency asserts that section 5 of the proposal "is not 'preserving' traditional RBT work, is not the same as [section] 2-15, and is[,] therefore[,] [non]negotiable." Id.

9. Section 6

As to Section 6 of the proposal, the Agency states that the record is uncontradicted that the proposal "covers maintenance functions in all of VOA's domestic and foreign relay stations and bureaus." Id. at 51. The Agency asserts that "[a]ll of these 'facilities' (with the exception of New York) are beyond NFFE's certified unit and (with the further exception of Los Angeles) are beyond what even NFFE claims as its 'traditional work jurisdiction.'" Id. According to the Agency, "[t]he maintenance work in the domestic and foreign relay stations has never been done by NFFE-represented radio broadcast technicians." Id. The Agency asserts that "the term 'automation and computer systems' encompasses the [SIS], which is headquartered in the NCC but which is a system 'interconnecting' with equipment located in all but three of the VOA domestic overseas relay stations." Id. The Agency argues that, "by NFFE's own admission [section] 6 is overbroad in going beyond NFFE's traditional work, is therefore not the same as [section] 2-15 and for this reason [section] 6 is nonnegotiable." Id. at 51-52 (footnote omitted).

10. Section 7

The Agency states that section 7 of the proposal "purports to identify specific equipment as 'non-jurisdictional and may be operated by either technicians or non-technicians.'" Id. at 58 (quoting section 7, citing Judge's Report at 30). In particular, the Agency states that section 7(b) allows the production areas known as "mini-booths," which are associated with the News and English Broadcasting (NEB) section, "'to be operated by either technicians or non-technicians, provided that the only non-technicians would be NEB personnel.'" Id. (quoting Judge's Report at 30). The Agency argues that "[i]n this regard, NFFE's proposal has the same flaw as the proposal" found nonnegotiable in Cherry Point, 952 F.2d at 1441-43, "that called for the establishment of an 'open' parking policy for all employees and supervisory personnel at a particular installation." Id. at 58-59 (emphasis omitted). The Agency asserts that although "a proposal that only RBTs could operate the NEB mini-booths would have avoided expressly 'regulating' the interests of AFGE-unit members[,]" the proposal "goes too far" by proceeding to say who among the non-RBTs may use the mini-booths and "affirmatively regulates their conditions of employment[.]" Id. at 59.

The Agency argues that section 7 of the proposal "does not simply 'preserve' or even claim work exclusively for RBTs; rather it affirmatively regulates what equipment 'may be operated by . . . non-technicians'; which non-technicians may operate it (7(b)); and the purpose for which non-technicians may operate it (7(a), (d) and (e))." Id. at 60 (emphasis omitted). The Agency argues that "[s]uch regulation is expressly prohibited by the D.C. Circuit in [Cherry Point]." Id. The Agency argues that "[t]he inappropriateness of such extra-unit regulation is more extreme in the context of [section] 704 bargaining." Id. The Agency asserts that in the context of section 704 bargaining, the proposal:

(a) regulates the conditions of non-unit employees and, therefore, (b) violates [section] 704's purpose of preserving the scope of the parties' pre-1972 relationship; (c) interferes with management's exercise of its statutory right relative to employees not covered by [section] 704; and (d) perhaps most compellingly, it subjects to the bargaining process between VOA and one union (NFFE) the working conditions of another union's (AFGE) members who are not prevailing rate employees and therefore not covered by [section] 704 and are therefore foreclosed from bargaining.

Id. at 60-61 (emphasis omitted).

B. Union

The Union states that its proposal is intended

to preserve for the bargaining unit employees the work they have traditionally performed: the operation and maintenance of technical equipment in the headquarters operation of [VOA], including all equipment used to record, produce and edit material that is to be broadcast over VOA facilities, and to route or transmit audio from VOA headquarters to remote transmitters.

Union's Supplemental Statement (Union Statement) at 6-7. According to the Union, the central issue that the Authority must address in this case on remand is whether the parties negotiated over the subject of the proposal, work jurisdiction, prior to August 19, 1972.

The Union maintains that sections 2-15 and 2-16 of the meeting notes of the parties' July 7, 1966, and October 11, 1967, collective bargaining negotiations demonstrate that the parties negotiated over work jurisdiction prior to August 19, 1972. The Union asserts that "[i]t is clear from these notes that the parties negotiated and reached agreement over who would operate technical equipment in the studio and control room." Id. at 5. The Union states that "[n]egotiations were held, though no agreement was reached, over the operation of 'professional equipment' (1966), and the operation of 'professional recording equipment, portable or otherwise' (1967)." Id.

The Union argues that the subject of work jurisdiction should not be viewed as narrowly as the Agency views the subject. The Union states that the bargaining unit that it represents is made up of members of a particular craft--radio broadcast technicians. According to the Union, that craft has traditional boundaries that are recognized and understood by persons in the broadcast industry. The Union states that technological changes in the broadcast industry have "blurred" the traditional lines of jurisdiction among radio broadcast industry personnel. Id. at 8. The Union further states that "[i]n 1966 and 1967 the Union was concerned about 'encroachment by producers' on the technicians' work. . . . [and] chose to respond by proposing to preserve the work for bargaining unit members." Id. (citations omitted). The Union asserts that "[j]urisdiction over certain parts of the bargaining unit's work (e.g.[,] field assignments, maintenance, and master control) were not addressed at that time simply because there was no threat to that work present in 1966 and 1967." Id. Additionally, the Union states that "[i]n 1988 the Union recognized threats to virtually all the work performed by bargaining unit employees." Id. The Union asserts that "[t]his threat had built up over several years of Agency actions and proposals." Id. According to the Union, its "proposal was a response to efforts by the Agency to eliminate and/or reassign work that had been traditionally performed by the bargaining unit, and an effort to preserve that work" for RBTs. Id. at 13. The Union asserts that "[t]he proposal clearly concerns the same subject that the parties negotiated in 1966 and 1967." Id.

The Union maintains that the proposal "does not seek to negotiate the conditions of employment of [employees] in AFGE's bargaining unit, as the Agency and AFGE both allege, nor does it seek to change or have the effect of changing the scope of any bargaining unit." Id. at 14. The Union asserts that, although the subject of work jurisdiction is normally outside the scope of bargaining in the Federal sector, section 704(a) of the CSRA preserves the parties' right to negotiate over the subject. According to the Union, apart from the Authority's original decision in this case, there is no Federal sector case law that addresses the issue of work jurisdiction. The Union notes that on numerous occasions the NLRB and the courts have addressed "whether a union's proposals constitute work preservation or work acquisition" and view proposals concerning work preservation as mandatory subjects of bargaining. Id. (emphasis omitted). The Union argues that the case law developed by the NLRB and the courts concerning work preservation and work acquisition "applies to the instant case." Id. at 18. The Union "urge[s] the Authority to apply [that] analysis to the instant case." Id. at 20.

The Union notes that "[i]n its remand to the Authority in the instant case, the Court of Appeals directed the Authority to reconsider its use of the 'vitally affects' test." Id. The Union states that in Cherry Point, the court clarified the purpose and appropriate use of the "vitally affects" test. The Union specifically notes the court's conclusion that "'[t]he "vitally affects" test is relevant . . . only when a union seeks to bargain over a matter that would not normally be viewed as within the scope of mandatory bargaining.'" Id. at 21 (quoting Cherry Point, 952 F.2d at 1440; emphasis in original omitted). The Union argues that because the record in this case shows that the parties negotiated the subject of work jurisdiction prior to August 19, 1972, "under [s]ection 704(a) of the [CSRA], the Union's proposal is a mandatory subject of bargaining . . . [and t]he 'vitally affects' test should not be applied to this proposal." Id. According to the Union, the fact that AFGE is involved is irrelevant to the Authority's analysis as to whether the proposal is negotiable as a work preservation provision.

The Union states that "[s]ection [2-16] of both the 1966 and 1967 [m]eeting [n]otes provide[s] evidence that the parties negotiated . . . over the operation of all technical equipment." Id. at 27-28 (emphasis in original). The Union argues, however, that even assuming "that the parties only addressed equipment in studios, for purposes of this issue, jurisdiction is jurisdiction." Id. at 28. The Union asserts that because the record shows that the Union negotiated to preserve one aspect of its traditional work, work jurisdiction, as such, was negotiated prior to August 19, 1972. The Union argues that "[t]he Union may now seek to modify and improve on what was negotiated then under [s]ection 704(a) of the [CSRA] and [s]ection 9(b) of P[ublic] L[aw] 92-392." Id. The Union asserts that "[t]he Union's proposal to preserve its entire jurisdiction flows directly from the provision which addressed part of its jurisdiction . . . [and] is clearly a modification and an improvement of the provisions in the 1966 and 1967 Union [m]eeting [n]otes." Id. at 28-29. The Union argues that the Authority should reject the Agency's argument in this regard because, "[u]nder the analysis urged by the Agency, the Union would be unable to keep up with technological change or to follow its work as management transfers it across administrative lines that are unilaterally created by the Agency." Id. at 29.

The Union contends that the proposal does not seek to expand the Union's bargaining unit. The Union asserts that the proposal "addresses work that has historically been performed by the employees represented by the Union, and seeks to provide in the collective bargaining agreement that this work will be performed and continue to be performed only by those employees." Id. The Union also states that "[t]he proposal does not seek to have any employees currently outside NFFE's bargaining [unit] declared by the Agency to be inside the unit." Id. The Union argues that "the division, branch, or other organizational component to which the [RBTs] were assigned has never been determinative of the work jurisdiction." Id. at 30. The Union asserts that the Agency previously changed its organizational structure and "has never before claimed that its administrative box-changing affected the jurisdiction of work performed by NFFE[-]represented technicians." Id. The Union argues that "[t]he administrative lines on the Agency's organization chart do not define the bargaining unit." Id. at 31. The Union contends that "it is the nature of the work that determines whether it is within the jurisdiction of those [employees] represented by NFFE." Id.

The Union asserts that the proposal does not seek to expand the bargaining unit by including employees currently represented by AFGE. To clarify its intent, the Union states that:

[T]he proposal intends that work historically performed by [RBTs] will continue to be performed by these employees represented by NFFE. This will require assigning some work that is currently performed by AFGE-represented employees back to technicians. The current number of technicians may be sufficient to perform the increased workload. If it is not, then the Agency will have to add technicians to its staff. In selecting for these new positions, it may select those who formerly performed those tasks as AFGE unit members or the Agency may select from any appropriate source. The fate of those AFGE unit members is not the Union's concern. The essential point is, nothing in the Union's proposal requires the transfer of any employees from one unit to another. The proposal addresses work, not workers.

Id. at 32 (emphases in original). The Union also states that it "has never claimed that its traditional work jurisdiction extended beyond the Washington headquarters of VOA, the New York News Bureau and the Los Angeles News Bureau." Id. at 35. The Union asserts that AFGE has presented no evidence that the Union's proposal would cover work at broadcast relay stations, other than those in the Washington headquarters, the New York News Bureau, or the Los Angeles News Bureau.

C. Intervenor

AFGE asserts that NFFE's proposal "would require the transfer of positions as well as work from the bargaining unit represented by [AFGE] to the unit represented by NFFE." Brief for American Federation of Government Employees, Local 1812 (AFGE Brief) at 1. AFGE states that "[t]he central issue presented is whether the proposal is a work jurisdiction proposal . . . or whether it impermissibly alters the scope of NFFE's and AFGE's bargaining units . . . ." Id. at 1-2 (footnote omitted).

According to AFGE, "[t]he technical functions involved in the present case include recording of programs in Agency studios, the recording of pre-recorded material to be used in such programming, internal switching of electronic signals prior to broadcast, the scheduling of this switching, and the final broadcast of programming to the listening audience." Id. at 7. AFGE states that "[s]ince 1971 AFGE has represented all employees assigned to the Traffic Division, which schedules the internal switching of signals, and domestic employees at Relay Stations who are responsible for actual broadcast of signals." Id. (footnote omitted). AFGE also states that: (1) since the creation of the NCC in 1987 to take over functions performed by private sector contractors, AFGE has represented all personnel in the NCC, which is responsible for transmitting signals to relay stations for broadcast to the listening audience; (2) AFGE represents all personnel, including technical personnel, in Radio Marti; and (3) AFGE has represented all personnel in the SOD facility since its creation in 1985. AFGE maintains that in each of the areas noted above, NFFE's proposal "claims work that is not functionally related to work performed by members of NFFE's unit[.]" Id. at 8.

AFGE claims that the facts in this case "show that NFFE's proposal would require the removal of from forty[-]four to one hundred and twenty[-]nine positions from AFGE's unit and their transfer to NFFE's unit." Id. at 13. AFGE argues that "[t]he proposal therefore affects unit scope rather than merely work jurisdiction." Id. at 14. AFGE also maintains that, inasmuch as NFFE seeks not only additional work, but additional positions for its unit, NFFE's proposal concerns unit scope. According to AFGE, "[u]nit scope is the pre-condition for stable negotiations over terms and conditions of employment; it is not a term and condition itself." Id. at 25. AFGE asserts that unit scope is not a mandatory subject of bargaining but must be determined by the Authority in appropriate proceedings. AFGE argues that the fact that this case arises under section 704(a) of the CSRA does not change that result. AFGE contends that "[t]here is simply no basis to infer that Congress intended [s]ection 704(a) to permit parties to avoid the universal requirement that unit[s] for bargaining be determined only by the Authority." Id.

AFGE asserts that, even if section 704 of the CSRA permits the parties to negotiate over unit scope, "unit scope was . . . not a subject of bargaining between the parties prior to August 19, 1972." Id. at 14. AFGE also asserts that "[e]ven if unit scope had been bargained, . . . it could not be considered a term and condition of employment." Id. AFGE further asserts that "there is no basis to conclude the requirements of 5 U.S.C. [s]ection 7112(a)(1) concerning the responsibility of the Authority in matters concerning scope of unit should be considered 'inconsistent' with [s]ection 704." Id. at 25. AFGE contends that because the proposal concerns the scope of NFFE's and AFGE's collective bargaining units, "[t]he sole route for NFFE . . . is a unit clarification petition." Id. at 14.

AFGE argues that the proposal in this case is "confusing and flawed" and that NFFE has failed to "provide a sufficient record for determining the negotiability of its proposal, including clarifying areas of the proposal that are susceptible to more than one interpretation." Id. at 25 (citations omitted; emphasis omitted). AFGE asserts that "[d]espite NFFE's assertion that the sole intent behind the proposal is work preservation, Sections 2, 3, 4, 5 and 6 of the proposal all cover work performed by members of AFGE's unit which has never been assigned to members of NFFE's unit, which is not functionally related to work assigned to NFFE's unit, and whose reassignment would require the transfer of positions from NFFE's to AFGE's unit." Id. at 27.

Finally, AFGE argues that the "vitally affects" test is not applicable to evaluating the negotiability of work jurisdiction proposals. AFGE asserts that the "vitally affects" test is "applied to [non]mandatory subjects of bargaining to provide a means for expanding subjects of bargaining where matters vitally affect[] working conditions of employees within the bargaining unit." Id. at 33. AFGE argues that, in this case, the "vitally affects" test need not be applied to expand the scope of bargaining to include work jurisdiction because "[w]ork jurisdiction is itself a mandatory subject without reference to this test." Id. AFGE also argues that, even if the "vitally affects" test were applicable in this case, the proposal would be nonnegotiable under the test because it is inconsistent with applicable law and regulation. AFGE maintains that the proposal is inconsistent with Authority "precedent requiring that modification of units be sought exclusively through unit clarification proceedings" and "[F]ederal regulations concerning reductions in force which grant procedural and substantive rights to individual employees." Id. at 34.

VIII. Analysis and Conclusions

A. Meaning of the Proposal

In NFFE and USIA, we found that the proposal in this case would require the Agency to assign the work described in the proposal to employees who are in the bargaining unit represented by the Union. The Union states that the proposal

intends to preserve for the bargaining unit employees the work they have traditionally performed: the operation and maintenance of technical equipment in the headquarters operation of the Voice of America, including all equipment used to record, produce and edit material that is to be broadcast over VOA facilities, and to route or transmit audio from VOA Headquarters to remote transmitters.

Union Statement at 6-7. The Union also states that the "proposal was a response to efforts by the Agency to eliminate and/or reassign work that had been traditionally performed by the bargaining unit, and an effort to preserve that work for the radio broadcast technicians." Id. at 13.

Except with regard to section 3 of the proposal, which we will discuss below, the Union's explanation is consistent with the wording of the proposal. Therefore, we find, consistent with the Union's explanation, that the proposal (excluding section 3) seeks only to establish the specific type of work that falls within the traditional work patterns sought to be preserved for RBTs, in light of organizational and technological changes within the VOA. Under the proposal, the technicians currently represented by NFFE will continue to be represented by NFFE. Consequently, we find that the proposal concerns only the work assignments of the RBTs represented by NFFE.

B. Conditions of Employment

1. Unit Status

The Agency and AFGE claim that the disputed proposal in this case does not concern the conditions of employment of unit employees because the proposal would have the effect of changing the unit status of employees in the units represented by both AFGE and NFFE. Under the Statute, proposals that would have the effect of determining the unit status of employees are nonnegotiable because unit status is a matter reserved exclusively for the Authority and, thus, such proposals are inconsistent with section 7105(a)(2)(A) of the Statute. National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 68-69 (1992). Stated otherwise, proposals purporting to establish the unit status of employees are nonnegotiable under the Statute because those proposals are inconsistent with law. See id. Because we find that the proposal in this case concerns only the assignment of work to RBTs in the NFFE unit, we conclude that the proposal does not concern the unit status of the employees in the AFGE unit and that the proposal is not inconsistent with section 7105(a)(2)(A) of the Statute. Moreover, because the proposal concerns the assignment of work to employees in the NFFE unit, we find that the proposal concerns the conditions of employment of employees in that unit. See, for example, Antilles Consolidated Education Association and Antilles Consolidated School System, Fort Buchanan, Puerto Rico, 46 FLRA 625 (1992).

Further, we find that our conclusion that the proposal in this case concerns only the assignment of work to RBTs in the NFFE unit and does not concern the unit status of the employees in the AFGE unit is consistent with the conclusions of the courts that have examined the issue of work jurisdiction and unit composition in the context of private sector labor law.⁽⁴⁾ "In the [private sector] labor law context, [work] jurisdiction refers to the type of work the members of the union are to perform; the scope of the bargaining unit is determinative of what employees the unit represents." Boise Cascade Corporation v. NLRB, 860 F.2d 471, 474 (D.C. Cir. 1988) (Boise Cascade) (emphases in original; footnotes omitted). Further, in the private sector, jurisdictional clauses--which concern the assignment of work to union members--are mandatory subjects of bargaining which may be negotiated to impasse. See id. See also Local 666, IATSE and Moving Pictures Machine Operators of the United States and Canada v. NLRB, 904 F.2d 47, 50 (D.C. Cir. 1990) (Local 666 v. NLRB), affirming Storer Communications, Inc. (WJKW-TV 8) and Local 666, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (AFL-CIO), 295 NLRB 72, 77-80 (1989) (NLRB held that changes in conditions of employment that involved the employer's removal of the filming of "hard news" from the exclusive jurisdiction of bargaining unit members, thus permitting the employer to assign such work to nonunit employees or a subcontractor, did not address the subject of the scope of the bargaining unit, but rather the work assignments and exclusive jurisdiction of the employees represented by the union). A proposal to change the scope of a bargaining unit concerns a permissive subject of bargaining, regardless of whether the recognized unit has been certified by the NLRB pursuant to its statutory procedures, or the unit has been voluntarily agreed upon by the employer and the union. See The Idaho Statesman v. NLRB, 836 F.2d 1396, 1400 (D.C. Cir. 1988). See also Local 666 v. NLRB, 904 F.2d at 50; Boise Cascade, 860 F.2d at 474.

As we stated above, the proposal in this case concerns only the work assignments of RBTs. Because the proposal concerns RBTs' work assignments--that is, the type of work the members of the unit are to perform--we conclude that the proposal establishes the work jurisdiction of RBTs and, therefore, concerns their terms and conditions of employment. Further, because the proposal does not require the removal or the transfer of positions or employees from the AFGE unit to the NFFE unit, we conclude, contrary to the contentions of the Agency and AFGE, that the proposal does not, by its wording or its effect, seek to determine the scope of either NFFE's or AFGE's collective bargaining unit--that is, "what employees the unit represents." Boise Cascade, 860 F.2d at 474 (emphasis omitted). Although the proposal could have the effect of reducing the amount of work currently performed by employees in the AFGE unit and could create competition between AFGE and NFFE as to the particular work performed by the employees they represent, the proposal does not have the effect of eliminating positions from the AFGE unit or requiring the transfer to the NFFE unit of employees who are currently in the AFGE unit, thereby changing the scope of those units. See, for example, Local 666 v. NLRB, 904 F.2d at 50-51 (proposals concerning the work assignments of employees that have the potential for reducing the hours of work of employees in another unit or creating competition with other unions do not affect the scope of the bargaining unit, provided that the proposals do not eliminate any positions or otherwise change the membership of the unit).

2. Extra-Unit Effects

As we noted above, the court remanded this case to us to reconsider the use of the vitally affects test as clarified by the court in its decision in Cherry Point. In Cherry Point, the court approved the Authority's adoption of the vitally affects test used in the private sector to determine whether proposals directly relating to the conditions of employment of persons outside a bargaining unit might nevertheless fall within the scope of the duty to bargain. According to the court, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440.

The court differentiated among four groups of nonunit personnel: (1) employees who are not in any collective bargaining unit; (2) management or supervisory personnel; (3) non-employees; and (4) employees in other collective bargaining units. Of relevance here is the court's discussion of proposals relating to employees in other units. Specifically, the court held that proposals that seek to determine the conditions of employment of employees in other units are nonnegotiable. Id. at 1441. The court also pointed out, however, that most union bargaining demands would have some "extra-unit effect" on non-unit personnel but held that such effects would not alter an employer's duty to bargain over mandatory subjects of bargaining. Id. at n.6. The court held that "proposals that principally related to the conditions of employment of bargaining unit personnel are within the traditional scope of mandatory bargaining." Id. at 1441. The court illustrated the difference between proposals that seek to determine the conditions of employment in other units and proposals that principally relate to the conditions of employment of unit employees, but have extra-unit effects, by reference to the issue of parking. According to the court, a proposal that specified the number and location of parking spaces reserved for unit employees would be negotiable because it principally relates to the conditions of employment of unit employees, even though it has the effect of making those spaces unavailable to employees in other units. In contrast, a proposal that specified the number and location of parking spaces reserved for unit employees, but also specified the allocation of the remaining spaces to non-unit personnel, including employees in other units, was nonnegotiable. Id. at 1442.

We find that the fact that NFFE's proposal could have an effect on employees in the AFGE unit does not demonstrate that the proposal, as a whole, is nonnegotiable under the analysis in Cherry Point.⁽⁵⁾ In particular, we find that sections 1 through 6 of the proposal in this case specify the work which will be performed by RBTs in the NFFE unit. Consequently, we conclude that sections 1 through 6 of the proposal principally relate to the conditions of employment of employees in the NFFE unit. The fact that the proposal could have the effect of removing work from employees in the AFGE unit does not render the proposal nonnegotiable. We also note that sections 1 through 6 of the proposal do not specify the work that will be performed by employees in the AFGE unit. Consequently, we conclude that, consistent with the court's decision in Cherry Point, sections 1 through 6 of the proposal concern the conditions of employment of employees in the NFFE unit.⁽⁶⁾

C. Issue on Remand

In USIA II, the court stated that "'the critical inquiry [under section 704(a) of the CSRA] is whether the proposed subject for negotiation is a matter that was negotiated by the parties prior to August 19, 1972.'" USIA II, 960 F.2d at 169 (quoting USIA, 895 F.2d at 1453). The court found that in NFFE and USIA the Authority had not adequately explained its interpretation of section 704(a) and its conclusion that work jurisdiction is a matter that was negotiated by the parties prior to August 19, 1972. The court indicated that to adequately explain its interpretation of section 704(a), the Authority must address "the thorny interpretive question of how squarely a current proposal must fit within the corners of a pre-1972 subject of negotiation for the former to be grandfathered by [section] 704(a)." Id. Therefore, the court remanded the matter for the Authority to address the question in the first instance.

On remand, the Agency maintains that "[t]he fact that Congress designed [section] 704 as a 'savings clause' to 'grandfather in' subjects negotiated pre-1972 that would otherwise be non-negotiable militates in favor of a narrow interpretation." Agency's Brief at 33 (footnotes omitted). The Agency argues that "[i]f a proposal on its face is not literally the same as the pre-1972 subject, the test should be whether upon an examination of the facts it changes the scope or substance of the bargaining relationship pre-1972." Id. at 34. The Agency states that both the Ninth and Tenth Circuits in BIA and Reclamation, respectively, interpreted section 704 narrowly and "ruled that the kind of pay negotiated was determinative, and found that because the proposed pay subject was not the specific type negotiated pre-1972, it would have added a distinct and new (albeit related) subject and thereby changed the scope and substance of the bargaining relationship." Id. at 35 (emphasis in original). The Agency asserts that "[w]hatever the contextual examination, however, the ultimate determination must be based on whether the proposed subject expands the scope or substance of the parties' bargaining relationship." Id.

The Union maintains that section 704 "must be viewed more broadly" and interpreted so as to recognize the "traditional boundaries that are recognized and understood by those in the broadcast industry." Union Statement at 7.

D. Meaning of Sections 9(b) and 704

Section 704 of the CSRA establishes certain bargaining rights for prevailing rate employees "to whom section 9(b) of Public Law 92-392 applies." Section 704(a) provides, in relevant part, that the terms and conditions of employment and other employment benefits of these prevailing rate employees that were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated after the enactment of the CSRA without regard to the provisions of the Statute.⁽⁷⁾

Sections 704 and 9(b), interpreted consistent with the legislative history of those provisions, authorize parties who negotiated over a subject matter prior to August 19, 1972, to continue existing contractual terms concerning that subject matter or to modify or improve those terms when negotiating a new agreement, without regard to any restrictions contained in the Statute. Bonneville, 22 FLRA at 998. See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1273, reconsideration as to other matters denied, 40 FLRA 1009 (1991). See also USIA I, 895 F.2d at 1453.

In enacting section 9(b) of the PRSA, Congress intended to preserve the scope and substance of collective bargaining agreements between representatives of certain prevailing rate employees and Federal agencies entered into by the parties that were in effect on the date of the enactment of the PRSA. In addressing the intended effect of section 9(b), the House report stated that:

Section 9(b) . . . provides that amendments made by the [PRSA] shall not be construed to affect the provisions of an existing contract which resulted from negotiations between agencies and employee organizations. This amendment strengthens the language of section 9(b) of the introduced bill and adds two new paragraphs. The new paragraph (2) provides that the provisions of the contracts which were in effect on the date of enactment of the [PRSA] may be renewed, extended, modified or improved through negotiation after the enactment date of [the PRSA]. The new paragraph (3) provides that the Act shall not affect any existing agreement between agencies and employee organizations regarding the various items which are negotiable, nor shall the [PRSA] preclude the inclusion of new items in connection with the renegotiation of any contract.

H.R. Rep. No. 339, 92d Cong., 1st Sess. 5 (1971). The report further stated:

The provisions of section 9(b) are directed at those groups of Federal employees whose wages and other terms or benefits of employment are fixed in accordance with contracts resulting from negotiations between their agencies and employee organizations. . . . It is not this committee's intent to affect, in any way, the status of such contracts or to impair the authority of the parties concerned to renegotiate existing contracts or enter into new agreements.

Id. at 22. Additionally, the Senate report stated as follows: "Section 9(b) is a savings clause to prevent disruption or modification of existing wage board bargaining agreements now in effect." S. Rep. No. 791, 92d Cong., 2d Sess. 6 (1972).

The legislative history of section 704 also demonstrates that Congress intended to preserve the scope and substance of the collective bargaining relationships that had developed over many years and were protected under section 9(b) of the PRSA. The House report stated that:

[Section 704] is intended to preserve the existing right of certain Federal prevailing rate employees to negotiate terms and conditions of employment. The committee intends that this subsection preserve unchanged the scope and substance of the existing collective bargaining relationship between the employees' representatives and the agencies involved. The subsection excludes these employees from the restrictions on the scope of collective bargaining under chapter 71, and grants them authority to negotiate pay and pay practices without regard to any provisions of chapters 51, 53, and 55 of title 5, or other provisions relating to rates of pay or pay practices with respect to Federal employees.

H.R. Rep. No. 1403, 95th Cong., 2d Sess. 61-62 (1978), reprinted in Legislative History at 675, 707-08.

The Conference Committee, in adopting an amended version of the House provision of section 704, stated that:

[Section 704] provides specific statutory authorization for the negotiation of wages, terms and conditions of employment and other employment benefits traditionally negotiated by these employees in accordance with prevailing practices in the private sector of the economy.

[Section 704] authorizes and requires agencies to negotiate on any terms and conditions of employment which were the subject of negotiations prior to August 19, 1972, the date of enactment of [the PRSA]. [Section 704(a)] may not be construed to nullify, curtail, or otherwise impair the right or duty of any party to negotiate for the renewal, extension, modification, or improvements of benefits negotiated.

Conf. Rep. No. 1717, 95th Cong. 2d Sess. 159 (1978) (also printed as S. Rep. No. 95-1272, dated Oct. 4, 1978), reprinted in Legislative History at 793, 827.

In sum, by enacting section 9(b) and section 704, Congress intended to authorize and require affected agencies that had, in accordance with prevailing practices, negotiated terms and conditions of employment and other employment benefits prior to August 19, 1972, to continue to negotiate with the exclusive representatives of their employees on those matters. See Bureau of Reclamation v. FLRA, slip op. at 3-6; International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 43 FLRA 1155, 1156-57 (1992). In particular, section 9(b) and section 704 gave agencies and unions specific authorization to renew, extend, modify, or improve upon previously agreed-upon matters when negotiating a new agreement, without regard to any restrictions contained in the Statute. See id.

E. Test to Be Applied

In USIA II, the court noted that "'the critical inquiry [under section 704(a)] is whether the proposed subject for negotiation is a matter that was negotiated by the parties prior to August 19, 1972.'" USIA II, 960 F.2d at 169 (quoting USIA I, 895 F.2d at 1453). However, the court further noted that in USIA I it was not presented with the question of how closely a current proposal had to fit within the scope of a pre-1972 subject of negotiation for the current proposal to be grandfathered by section 704(a). The court remanded the case to the Authority to provide a reasoned interpretation of section 704(a) and suggested that, on remand, we "consider the treatments of similar questions by the Ninth and Tenth Circuits[,]" in BIA and Reclamation, respectively. Id. We turn now to those decisions.

In BIA, the Ninth Circuit examined how closely a proposal concerning "save pay" matched subjects negotiated between the parties prior to August 19, 1972, in order to determine whether the proposal was negotiable under section 704. The court stated that the central question in that case was the following: "When [section 704(a)] says that a matter is negotiable if it has been 'the subject of negotiations,' does the statute mean that if wages had been negotiated in the past[,] any matter relating to wages is negotiable in the future?" BIA, 887 F.2d at 176 (emphasis in original). In answering that question in the negative, the court found that Congress "has not treated the wages of [F]ederal employees as a simple uniform topic." Id. Noting that Congress treated a variety of wages, such as merit pay, Sunday and holiday pay, and retroactive pay, as separate subjects, the court stated that what was "critical" in determining whether the matter involved in that case had been the subject of negotiations within the meaning of section 704(a) was "the kind of wages that were the subject of previous bargaining." Id. The court found that "save pay" provisions were not such a subject for the parties in that case, and, therefore, section 704(a) did not authorize bargaining over the union's proposal.

In Reclamation, the proposal at issue concerned Sunday premium pay. The Tenth Circuit stated:

Like the court in [BIA], we conclude that, given the various types of premium pay Congress has defined by statute, it would be a misinterpretation of [s]ection 704(a) to conclude that negotiation of any type of premium pay operated to preserve the negotiability of all others. What is of importance is the exact kind of premium pay that was the subject of previous bargaining. The variety of types of premium pay detailed by Congress demonstrates that Congress does not view 'premium pay' as a generic term. Rather, 'premium pay' encompasses several specific types of pay above the basic level.

Reclamation, 908 F.2d at 575. Accordingly, the court found, as relevant here, that the proposal was not negotiable because the requirement of section 704(a) that the proposed subject for negotiation (Sunday premium pay) must have been a matter that was the subject of negotiations prior to August 19, 1972, was "not satisfied by a showing of negotiations concerning other kinds of premium pay." Id. at 576.

Upon reexamination of section 704(a) of the CSRA, and consistent with BIA and Reclamation, we find that section 704(a) authorizes negotiations only over specific matters that were the subject of negotiations prior to August 19, 1972. We believe that for the purpose of section 704(a), the subject of a collective bargaining proposal or a collective bargaining agreement provision is the specific term and condition of employment or other employment benefit that the proposal or provision addresses. In making this determination, we will consider all pertinent factors, including, as appropriate: (1) the text of any relevant proposal or provision; (2) evidence, including bargaining history, relating to the intent of any relevant proposal or provision; (3) evidence as to the current and pre-1972 work situations of the unit (for example, the agency's structure and functions and the employees' duties); and (4) the parties' contentions as to whether Congress has expressed any intent through legislation as to the scope of a subject matter, as it did with respect to the subject matters concerning pay in BIA and Reclamation.⁽⁸⁾ If, based on consideration of the pertinent factors, we find that a current proposal concerns the same specific matter that was the subject of negotiations prior to August 19, 1972, then the subject-matter requirement of section 704(a) will have been met. Moreover, consistent with section 9(b) of the PRSA, bargaining over a current proposal that renews, extends, modifies, or improves upon the specific matter that was the subject of negotiations prior to August 19, 1972, will be permitted.

F. Negotiability of the Proposal

In NFFE and USIA, we concluded that the Union's work jurisdiction proposal concerned a matter which was the subject of negotiation prior to August 19, 1972, because section 2-15 of the 1966 and 1967 Union meeting notes demonstrated that the parties had negotiated over the subject of the work jurisdiction of bargaining unit employees.⁽⁹⁾ As we found in NFFE and USIA, the proposal provides that all technical equipment in Master Control, WOCC, Studios, Central Recording, and Technical Support shall be operated exclusively by RBTs. The proposal includes computer and automation systems used in VOA radio broadcasts among the technical equipment which shall be operated only by the RBTs. As noted above, the Union states that the purpose or goal of its jurisdiction proposal is

to preserve for the bargaining unit employees the work they have traditionally performed: the operation and maintenance of technical equipment in the headquarters operation of the [VOA], including all equipment used to record, produce and edit material that is to be broadcast over VOA facilities, and to route or transmit audio from VOA headquarters to remote transmitters.

Union's Statement at 6-7. The Union also states that the current proposal "was a response to efforts by the Agency to eliminate and/or reassign work that had been traditionally performed by the bargaining unit[.]" Id. at 13. The proposal would have the effect of precluding the Agency from assigning the work described in the proposal to employees who are not in the bargaining unit represented by the Union.

The wording of section 2-15 of the 1966 and 1967 meeting notes provides that all technical equipment in the studio and control room must be operated by technical personnel only. In NFFE and USIA we interpreted the meeting notes as evidence of the parties' bargaining over an agreement concerning the operation of technical equipment by RBTs prior to August 19, 1972. At the hearing in this case the Judge credited the testimony of Robert Oringel, the Union President during the time of the 1966-67 negotiations, as reliable evidence of the meaning of the meeting notes and the parties' intent as to sections 2-15 and 2-16 of the meeting notes.⁽¹⁰⁾ Judge's Report at 18. Oringel testified that the purpose of section 2-15 was to prevent producers from operating the technical studio equipment that was normally operated by the RBTs. Oringel stated that "'[s]ince it began to become flagrant, the [U]nion brought it up with the division management in terms of ceasing and desisting.'" Judge's Report at 18 (quoting Transcript at 56). Oringel also testified that the Union negotiated with the Agency, but could not reach agreement, on section 2-16, which was a "variation of [s]ection 2-15."⁽¹¹⁾ Id. at 19 (quoting Transcript at 57). According to Oringel, section 2-16 provided that RBTs would be responsible for "'operating professional equipment . . . .'" Id. Oringel described the professional equipment referred to in section 2-16 as "[v]irtually, all of the professional equipment, and the studios, and the recording room, and master control, in the field." Id. at 20 (quoting Transcript at 57). Based on the wording of sections 2-15 and 2-16 and the record evidence, we find that the effect of sections 2-15 and 2-16 was to preserve the RBTs' right to operate technical equipment at VOA.

The record in this case demonstrates that the proposal, as did sections 2-15 and 2-16, seeks to preserve certain work for RBTs, which the Union claims is the traditional work of the unit. The record also shows that the proposal and sections 2-15 and 2-16 were submitted for negotiation in response to the Agency's action of reassigning work, which the Union believed was bargaining unit work, to nonbargaining unit employees. Therefore, we conclude that the current proposal addresses the specific terms and conditions of employment that are addressed in sections 2-15 and 2-16 of the meeting notes. The current proposal and sections 2-15 and 2-16 both seek to preserve the RBTs' right to operate certain technical equipment at VOA and prevent the operation of that technical equipment by non-technicians.

It is clear from the record evidence in this case that the parties bargained, prior to August 19, 1972, on the subject of the jurisdiction of RBTs to operate and maintain specific broadcasting equipment that was used to perform particular functions in the broadcasting process. The conclusion that the parties bargained over the operation of technical equipment at VOA, however, does not define precisely the specific term or condition of employment, or other employment benefit, that was involved in the parties' pre-1972 bargaining, under the test outlined above, nor does it resolve the question of whether the subject of the current proposal concerns the same specific subject that was negotiated by the parties prior to August 19, 1972. The operation of technical equipment at VOA, like premium pay in BIA and Reclamation, is the general subject matter negotiated by the parties. However, in BIA and Reclamation, the courts stated that the determination of whether the pay matter involved in each case was negotiable depended on whether the type of wages addressed by the current proposal was the same type of wages that was addressed in bargaining by the parties prior to August 19, 1972. Consistent with BIA and Reclamation and under the test set forth above, the negotiability of the current proposal depends on a determination as to whether the parties bargained prior to August 19, 1972, concerning the RBTs' exclusive right to perform the particular broadcasting functions that are addressed by the current proposal.

Specifically, to determine whether the current proposal addresses the same specific terms and conditions of employment or other employment benefits that were addressed in sections 2-15 and 2-16 of the meeting notes, we must determine whether the functions in the broadcasting process that were performed by RBTs prior to 1972, using then existing equipment, are the same kind of broadcasting functions that would be performed by RBTs under the current proposal, using currently existing equipment. If the current proposal preserves for RBTs the right to perform the same type of function in the broadcasting process that RBTs performed prior to 1972, the current proposal addresses the same specific terms and conditions of employment that were addressed by the meeting notes and, therefore, would concern the same specific subject negotiated in those provisions. In other words, where the broadcasting functions addressed by the current proposal are the same kind of functions that were at issue in pre-1972 bargaining, or where the current proposal is an extension, modification, or improvement of the parties' pre-1972 agreements on the broadcasting functions performed by RBTs, we will find that the subject of the current proposal concerns the same specific subject that was negotiated between the parties prior to August 19, 1972.

Our approach in this regard is consistent with the approach taken by the Supreme Court in cases involving work preservation issues in situations of technological change. In NLRB v. International Longshoreman's Ass'n, 447 U.S. 490 (1980) (Longshoreman's Ass'n), the Court stated that:

Identification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are allegedly seeking to preserve, and of how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. The analysis must take into account "all the surrounding circumstances," [National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 644 (1967) (National Woodwork)], including the nature of the work both before and after the innovation. In a relatively simple case, such as National Woodwork or [NLRB v. Pipefitters, 429 U.S. 507 (1977) (Pipefitters)], the inquiry may be of rather limited scope. Other, more complex cases will require a broader view, taking into account the transformation of several interrelated industries or types of work; this is such a case. Whatever its scope, however, the inquiry must be carefully focused: to determine whether an agreement seeks no more than to preserve the work of bargaining unit members, the [NLRB] must focus on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work, and examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it.

Longshoreman's Ass'n, 447 U.S. at 507 (footnote omitted).

By focusing on the broadcasting functions performed by the RBTs, we base our determination as to the negotiability of the Union's work preservation proposal under section 704 on an analysis, as outlined in Longshoreman's Ass'n, of the nature of the work performed by the RBTs. In our view, the approach used in the private sector to determine whether a union may bargain on work preservation proposals is a useful model for determining, under section 704, whether current work preservation proposals concern the same subject matter that was bargained by the parties prior to 1972. We believe that use of the private sector analytical approach is particularly warranted in this case because the subject matter--work preservation--is identical to the subject matter in dispute in Longshoreman's Ass'n, and also because "sections 9(b) and 704 were designed to preserve for prevailing rate employees the same scope of bargaining enjoyed by private sector workers for those issues that were subjects of negotiation prior to the enactment of the PRSA." Bureau of Reclamation v. FLRA, slip op. at 13.

1. SECTION 1. Introduction:

Both Parties recognize that jurisdiction over the operation of technical equipment by the Radio Broadcast Technicians of the NFFE Local 1418 Bargaining Unit at the Voice of America was the subject of substantive negotiations between the Parties prior to August 19, 1972. Therefore, the jurisdiction over technical equipment by the Radio Broadcast Technicians in the Bargaining Unit is as follows:

a. Meaning of Section 1

The first sentence of section 1 of the proposal states that the parties understand and agree that the RBTs in this case have jurisdiction over the operation of technical equipment at the VOA and that jurisdiction over the operation of technical equipment by RBTs was the subject of negotiation between the parties prior to August 19, 1972. The second sentence of section 1 states that, because work jurisdiction was the subject of negotiation between the parties prior to August 19, 1972, the Agency is required to bargain over the work jurisdiction of RBTs as set forth in the sections 2 through 7 of the proposal. The second sentence of section 1, in effect, constitutes an agreement between the Agency and the Union that the RBTs have a right to negotiate over the subject of jurisdiction over the operation of technical equipment under section 704 of the CSRA.

b. Section 1 Is Not Severable

Section 704(a) of the CSRA requires as a condition precedent to the negotiability of a current proposal a determination that the subject of that proposal was in fact negotiated between the parties prior to August 19, 1972. Section 1 purports to establish the necessary factual predicate under section 704(a) to the negotiability of the remaining sections of the proposal. Although we see no basis in section 704 to preclude the parties from stipulating to the fact that they negotiated over a subject prior to August 19, 1972, so as to establish the factual predicate to the negotiability of a current proposal, it remains for the Authority to determine whether the specific terms and conditions of employment, or other employment benefits, addressed by the current proposal concern the same specific subject addressed by the parties' pre-1972 bargaining. The adequacy of any such contractual stipulation of fact to establish the negotiability of a given proposal, therefore, depends on whether that stipulation establishes the specific subject negotiated prior to August 19, 1972, so that it is sufficient to support a determination that the specific terms and conditions of employment, or other employment benefits, addressed by the current proposal concern the same specific subject.

In short, the adequacy of section 1 of the proposal in this case to support the conclusion that the remaining sections of the proposal are negotiable under section 704 depends on whether the record in this case establishes that the specific terms and conditions of employment, or other employment benefits, addressed by those sections concern the same specific subject negotiated between the parties prior to August 19, 1972. As will become clear from our conclusions as to the remaining sections, section 1 does not contain sufficient specificity to adequately establish the requisite factual predicate to the negotiability of those remaining sections. We find, therefore, that section 1 is not severable from the rest of the proposal and that it is negotiable only to the extent that the remaining sections of the proposal are negotiable. We turn, then, to the remaining sections of the proposal.

2. SECTION 2. Master Control:

Bargaining Unit technicians assigned to the Master Control Branch shall operate, maintain or otherwise be responsible for all equipment associated with the broadcast of VOA programs and/or the routing of audio to and/or from internal and/or external broadcast sources via Master Control. Technicians in the Bargaining Unit assigned to Master Control shall also operate and/or be responsible for computer and automation systems which assist in the broadcast or routing of audio in program, feed and/or production modes. In addition, technicians in the Master Control Branch shall be responsible for such transmission requirements related to Master Control as pertains to satellite, microwave and land line facilities.

a. Background - Master Control Section

Since 1966, the Master Control Section has "operate[d] as the central 'switching' point for VOA." Judge's Report at 4. Master Control is responsible for coordinating "the reception, monitoring and routing of programs and audio communications received from external sources (e.g., White House, United Nations special events, correspondents' reports) and internal sources (e.g., VOA studios)." Id. The signals received by the Master Control Section are "routed through the Master Control console and out one or more of the numerous outputs ('circuits') within Master Control and to the VOA 'mainframe' adjacent to Master Control." Id. The radio signal is then "picked up for transmission via one or more modes including land lines, microwave and/or (since approximately 1977) satellite," by VOA's Network Control Center.⁽¹²⁾ Id.

b. Meaning of Section 2

Section 2 of the proposal provides that RBTs assigned to the Master Control Section shall operate and maintain all equipment associated with the broadcast of VOA programs. Section 2 also provides that the RBTs shall be responsible for the routing of audio to and from internal and external broadcast sources by way of Master Control. Under section 2, the RBTs would operate and be responsible for computer and automation systems which assist in the broadcast or routing of audio in program feed and program production modes.⁽¹³⁾ Section 2 further provides that RBTs in the Master Control Section shall be responsible for transmission requirements related to Master Control which pertain to satellite, microwave, and land line facilities. We find that the subject of section 2 is the RBTs' operation of technical equipment used in the Master Control Section for the routing of audio signals from internal and external sources.

c. Section 2 Concerns the Same Subject Addressed in Sections 2-15 and 2-16

We determined above that if we conclude, based on the record evidence, that a current proposal addresses the same specific term and condition of employment or other employment benefit that was addressed by the parties in their negotiations prior to August 19, 1972, we will find that the proposal concerns the same specific subject negotiated between the parties prior to August 19, 1972.

The record shows that there has been a change in the technology or equipment used in the Master Control Section to accomplish the technical functions traditionally performed by the RBTs in the NFFE unit. For example, some of the manual functions performed by RBTs in the Master Control Section, beginning in 1966, are "now computer-operated within Master Control." Id. at 4 (footnote omitted). The Union states that in assessing the negotiability of the proposal, "[t]he questions before the Authority are whether the proposal concerns the work of NFFE-represented [RBTs], and how does the work as it existed before VOA's introduction of new technology and equipment relate to the work that the Union proposes to preserve." Union Statement at 18.

We agree with the Union that in order to determine the negotiability of section 2, we must determine how the work as it existed before VOA's introduction of new technology and equipment relates to the work that the Union proposes to preserve in its proposal. In other words, as we stated above, to determine whether the current proposal addresses the same specific term and condition of employment or other employment benefit that was addressed by sections 2-15 and 2-16, we must compare the functions in the broadcasting process performed by the equipment operated by RBTs prior to 1972 and the functions performed by the equipment which RBTs would operate under the proposal to determine whether the respective functions they perform are similar. If the current proposal preserves for RBTs the right to operate equipment that performs functions similar to the functions in the broadcasting process performed by equipment operated by RBTs prior to 1972, the current proposal addresses the same specific terms and conditions of employment that were addressed by sections 2-15 and 2-16 and, therefore, would concern the same specific subject negotiated in those provisions.

Initially, we find, based on the record evidence, that section 2 establishes the work jurisdiction of the RBTs who are assigned to the Master Control Section of VOA. As we found above, section 2-16 of the meeting notes addresses the same subject. In particular, the subject of section 2-16 is the operation of "professional equipment," which included equipment in "master control." Judge's Report at 20. Section 2-16 of the meeting notes and section 2 of the current proposal both establish the RBTs' work jurisdiction by describing the specific technical functions that are the responsibility of RBTs in the Master Control Section.

The record shows that since 1966, RBTs in the Master Control Section, among other things, "operat[ed] the Master Control console," "monitor[ed], maintain[ed] and coordinate[d] program feeds and audio levels incoming to Master Control from internal sources (e.g., studios) and remote sources (e.g., White House, United Nations, networks)," "deal[t] with vendors leasing lines to VOA[,]" and "[r]oute[d] programs to outputs within Master Control connected to circuits going from Master Control into a bank of wires outside of Master Control, referred as the 'mainframe' and known as the 'demarcation point[.]'" Id. at 4. The RBTs also "[m]onitor[ed] and maintain[ed] quality of audio from Master Control" and "[c]hecked Master Control equipment and perform[ed] operator maintenance." Id. at 5. The record also reveals that the RBTs traditionally had responsibilities in connection with the transmission of radio signals from Master Control by way of the various modes of transmission, including land lines and microwave, which, since approximately 1977, have been replaced by satellite transmission. For example, the RBTs "verif[ied] accuracy [of transmissions] with vendors and transmitter sites," "[r]eceive[d] calls via telephone or teletype from transmitter sites ('relay stations') of defects or reception failures," "log[ged] any reports received of incidence of program failures and vendors' follow-up for billing purposes," and "upon request from vendor [or] relay station . . . establish[ed] back-up circuit or 'dial-up backup telephone line.'"⁽¹⁴⁾ Id. at 5-6.

The wording of section 2, the Union's explanation of that section, and the record show that section 2 preserves for RBTs the same technical functions which the Judge found the RBTs traditionally performed in the Master Control Section of VOA. That is, section 2 preserves the RBTs' right to operate and maintain the equipment used to produce and broadcast VOA programs, which includes the routing of audio signals to and from internal and external broadcast sources by way of Master Control and Master Control's role in the transmission of radio signals by way of satellite, microwave, and land line facilities. Therefore, section 2 preserves for RBTs the right to operate equipment performing the same functions in the broadcasting process that were performed by the equipment that was the subject of negotiations between the parties prior to 1972, as reflected in section 2-16 of the meeting notes.

We find, based on the record, that section 2 of the proposal addresses the same specific terms and conditions of employment that were addressed by section 2-16 of the meeting notes and, therefore, concerns the same specific subject matter negotiated by the parties prior to 1972 as evidenced by those notes. Our conclusion is not changed by the fact that some of the functions covered under section 2-16 are currently performed by computer and automation systems. In our view, the right preserved in the jurisdictional sections of the pre-1972 meeting notes is the right to operate the equipment that performs the specific functions in the broadcasting process traditionally performed by RBTs and not the right to operate only specific equipment.⁽¹⁵⁾ Therefore, we interpret the portion of section 2 providing that RBTs shall have jurisdiction over computer and automation systems which assist in the broadcast or routing of audio in program feed and program production modes in the Master Control Section as preserving the RBTs' right to perform the work they have traditionally performed even though the work currently would be performed using computer or automation systems.⁽¹⁶⁾

In summary, we find that section 2 of the proposal preserves for RBTs the right to operate and maintain equipment that performs the same technical functions that the Judge found the RBTs traditionally performed in the Master Control Section of VOA. That is, section 2 preserves the right of RBTs to operate the equipment performing the functions about which the parties negotiated prior to 1972 as reflected in section 2-16 of the meeting notes. We find that the specific terms and conditions of employment addressed by section 2 of the proposal are the same that were addressed by section 2-16 and conclude, therefore, that section 2 addresses the subject that was negotiated by the parties in bargaining over section 2-16 prior to August 19, 1972. Accordingly, we conclude that section 2 is negotiable under section 704(a) of the CSRA.

3. SECTION 3. World Operations Control (WOCC):

Technicians of the Bargaining Unit assigned to the World Operations Control Center (WOCC) shall operate, maintain and/or otherwise be responsible for the equipment associated with the WOCC and the Satellite Interface System (SIS) including computer and automation systems responsible for the transmission and/or reception of broadcast audio, and/or for adjustments to transmission sites as would normally be communicated and/or controlled from this facility.

a. Background - WOCC/NCC

The Union indicates that the WOCC referenced in section 3 of the proposal has been redesignated the NCC. In the absence of any Agency statement to the contrary, we will refer hereinafter to the NCC as the organizational segment covered by section 3 of the proposal.

The Agency established the NCC in 1988. The NCC is located in VOA's Office of Engineering, which is responsible for "monitoring and management of all relay bases, both domestic and foreign, and is organizationally and functionally separate from the Office of Programs of which the Operations Management Division is a sub-unit." Judge' Report at 27. As found by the Judge,

NCC is responsible for the centralized control of transmission of signals from the mainframe to the point of delivery for broadcast to VOA listening audiences worldwide. The radio signal leaves Master Control and from the mainframe must travel via multiple modes of transmission to the targeted audience. This network of combinations of equipment and transmitter paths is known as VOA's "global distribution system." The modes of transmission include land lines, microwave and satellite to a VOA domestic or foreign relay station, and beyond that point by short-wave or medium-wave to the listener. Thus, any problems with the transmission of a radio signal past the mainframe [are] now solely within the responsibility of NCC.

Id.

Prior to the establishment of NCC, private contractors were responsible for transmitting radio signals from VOA to the point of delivery for broadcast to VOA listening audiences, locating failures in transmission up to the relay stations, and correcting problems once the signal left VOA. The private contractors owned or leased and operated all of the equipment used to accomplish these functions. However, if a relay station notified the Master Control Section of a reception failure, "Master Control could, at the station's request, flip a switch on the telephone to provide the audio via the telephone as a backup[,]" or "in the event of a transmission failure beyond the mainframe, [would] be responsible to send a test tone through a circuit." Id. at 28. Since the establishment of NCC, the Master Control Section has no role in the transmission of a signal after it leaves the VOA mainframe.

b. Meaning of Section 3

Section 3 provides that RBTs shall be assigned to NCC to operate, maintain, and otherwise be responsible for the equipment used by NCC and the SIS, including computer and automation systems responsible for the transmission and reception of broadcast audio, and for adjustments to transmission sites that would normally be communicated and controlled from NCC. The Union explains that section 3 "covers those portions and operations of the NCC that are located in Washington, DC and which perform tasks previously done by technicians in Master Control." Id. According to the Union, those functions include "communication with the transmitter sites and private vendors, passing the signal from VOA to these vendors, and reconfiguring the transmission network as needed in order to accommodate special events or failures." Id. The Union states that section 3 does not require that RBTs operate equipment located at the transmitter sites or relay stations. We find that the subject of section 3 is the RBTs' operation of technical equipment used by NCC and the SIS for the transmission and reception of broadcast audio and for adjustments to transmitter sites.

c. Section 3 Does Not Concern the Same Subject Addressed in Sections 2-15 and 2-16

The record shows that NCC now performs several functions that previously were the responsibility of RBTs assigned to the Master Control Section. Specifically, the Judge found that since 1988 employees in NCC are responsible for verifying accuracy with vendors and transmitter sites, periodically conducting frequency and noise distortion tests to transmitters, receiving calls from relay stations and "troubleshooting" from the mainframe downstream, and acting as a 24-hour information officer for relay stations. Id. at 6. The Judge also found that, prior to 1988, RBTs operated equipment used to perform these functions. The Union asserts that section 3 covers only operations of the NCC that are located in Washington, D.C. and tasks previously done by technicians in Master Control.

However, the plain wording of section 3 does not limit RBTs to the operation and maintenance only of that equipment used to perform functions in connection with the operations of the NCC and the SIS that are located in Washington, D.C., or that perform tasks previously done by RBTs in Master Control, such as verifying accuracy with vendors and transmitter sites, periodically conducting frequency and noise distortion tests to transmitters, receiving calls from relay stations and troubleshooting from the mainframe downstream, and acting as a information officer for relay stations. The wording of section 3 gives RBTs jurisdiction over the equipment used to perform certain functions in connection with the operations of the NCC and the SIS, including functions that were never the responsibility of the RBTs in the Master Control Section, such as the operation of telecommunication, transmission, computer and monitoring equipment, including the SIS, located in the NCC.

The record demonstrates that many of the functions currently being performed by NCC and claimed for RBTs under the wording of the proposal were, prior to 1988, the responsibility of private contractors and were never performed by the RBTs in Master Control. See id. at 27-28. The Union states that section 3 does not require that RBTs operate equipment located at the transmitter sites or relay stations. However, the Union does claim jurisdiction over the "technical equipment in the headquarters operation of [VOA], including all equipment used . . . to route or transmit audio from VOA Headquarters to remote transmitters[,]" that is now located within NCC. Union Statement at 6-7. Prior to the creation of NCC, private contractors owned or leased and operated all of the equipment used to route or transmit audio "once the signal left VOA." Judge's Report at 28. The RBTs' only responsibilities with regard to the transmission of audio signals occurred when a relay station notified Master Control of a "reception failure" or a "transmission failure." Id. In the event of a reception failure, "Master Control [RBTs] could, at the [relay] station's request, flip a switch on the telephone to provide the audio via the telephone as a backup." Id. When there was a "transmission failure beyond the mainframe" RBTs in Master Control would "be responsible to send a test tone through the circuit." Id. The wording of the proposal provides that RBTs shall operate, maintain, and otherwise be responsible for equipment used by NCC and the SIS, including computer and automation systems responsible for the transmission and reception of broadcast audio, and for adjustments to transmission sites that would normally be communicated and controlled from NCC. We find, based on that wording, that section 3 of the proposal includes equipment, formerly owned and operated by private contractors, that performs functions of the NCC that were never performed by the RBTs in Master Control. Consequently, we conclude that the Union's interpretation of the proposal is inconsistent with the wording of the proposal.

We find that, by providing that RBTs have jurisdiction over the equipment used to perform certain functions in connection with the operations of the NCC and the SIS that were never the responsibility of RBTs, section 3 addresses matters that were not the subject of negotiation between the parties prior to August 19, 1972. Specifically, we find that sections 2-15 and 2-16 of the parties' meeting notes contain no evidence that the references to technical and professional equipment in the meeting notes included equipment that was owned or leased by private contractors and used by them to route or transmit audio from VOA Headquarters to remote transmitters. Further, there is no other evidence in the record which demonstrates that the transmission functions performed by private contractors ever became the responsibility of RBTs. Therefore, there is no evidence that such transmission functions were matters affecting the terms and conditions of employment or other employment benefits of RBTs which were the subject of negotiations between the parties prior to August 19, 1972. We find, therefore, that the subject matter of section 3 of the proposal addresses specific broadcast functions that the parties did not address in negotiations prior to August 19, 1972. Thus, the subject addressed by section 3 is not a matter that was negotiated by the parties prior to August 19, 1972. Consequently, we find that section 3 is not preserved for negotiation under section 704(a) of the CSRA.

We also find that the section 3 is not otherwise negotiable under the Statute. At the outset, the Union stated that "[t]his proposal concededly would not be negotiable in a typical Federal sector bargaining unit as it would violate management's right to assign work under 5 U.S.C. [§] 7106(a)(2)(B)." Union's Response to Agency's Statement of Position at 1. We agree. See, for example, American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 624 (1987) (proposal that was "in the nature of a work preservation requirement" directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, was nonnegotiable under the Statute). Accordingly, because we find that section 3 directly interferes with management's right to assign work, we conclude that section 3 is nonnegotiable under section 7106(a)(2)(B) of the Statute. Compare U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, 41 FLRA 3, 12-17 (1991) (Lower Colorado Region) (subject of union office space, which is negotiable under the Statute, also is negotiable for employees entitled to bargain pursuant to section 704 even though union office space was not the subject of negotiations between the parties prior to August 19, 1972).

4. SECTION 4. Studios:

Technicians of the Bargaining Unit assigned to the Studio Branch are responsible for the operation of all audio, computer and automation equipment used in the VOA studio control rooms associated with the broadcast of live airshows and pre-/post-production operations. Studios, in this sense, refer to all studios in the VOA Headquarters Building including those studios used for regular VOA programs and VOA/Europe, the language area production studios (LAPS), and the studios of the New York News Bureau and Program Center, and such studios as may be added in additional locations either in Washington or in the United States and/or its territories. If consolidation of VOA operations merges Radio Marti into the mainstream VOA broadcast operations, jurisdiction shall extend to the Radio Marti operations and technicians. Equipment refers to computer and automation systems commonly developed for broadcast applications, audio consoles, turntables, cartridge machines, compact disc players and cassette machines, reel-to-reel tape machines, microphones, patch bays, equalizers, remote control devices and like or similar equipment.

a. Background - Studio Section

Since 1966, the function of the Studio Section has been to operate radio broadcast equipment in VOA studio control rooms. The Studio Section is currently part of the OMD.⁽¹⁷⁾ The broadcast equipment used to perform the functions of the Studio Section includes "the studio control console, microphones, cassette and reel-to-reel tape machines, compact disc players, turntables, equalizers, and related equipment." Judge's Report at 7. As found by the Judge,

[t]he "technical equipment" and "professional recording equipment" operated by the studio broadcast technicians in 1966 and 1967 was for the recording of radio programs in the VOA studios, all of which were in the Studio Section of the Operations Management Division. The function of the equipment was to variously mix, balance, control and amplify for live broadcast and/or for recording purposes, program material originating in the Studio Branch studios, each of which consisted of a studio and a separate control room.

Id. at 13.

Beginning in the 1980s, when the Agency established new divisions to provide broadcast services to Cuba and Western Europe, technical functions similar to those performed by the RBTs in the Studio Section were also performed outside the Studio Section. Radio Marti is a special broadcasting arm of VOA created by legislation and established to broadcast, by radio, exclusively into Cuba, beginning approximately in 1983. The legislation creating Radio Marti required that it be administered separately from the VOA and USIA. However, Radio Marti is under the administrative oversight of both VOA and USIA. Upon its creation, Radio Marti's technical positions were "classified General Schedule and ultimately became part of the AFGE bargaining unit." Id. at 26. The Radio Marti technician positions are similar to RBT positions but have somewhat different duties because of their role in the process of broadcasting to Cuba.⁽¹⁸⁾

The Agency introduced VOA Europe in the mid-1980s. VOA Europe is outside of the OMD. It was created "to broadcast in English to Western Europe with a different musical format than other VOA broadcasts, and set-up to be a 'combo' operation in which the operation of technical equipment would be performed by either the announcer or the producer; no separate technician would be employed." Id. Because of its musical format, "most of the talent were contractors from European stations who did the programming." Id. The technical work of controlling the consoles was done by non-technicians. "However, when the VOA Europe studios were first constructed, NFFE-represented technicians performed all technical functions in the control room." Id.

b. Meaning of Section 4

Section 4 provides that RBTs assigned to the Studio Section of VOA will be responsible for the operation of all audio, computer, and automation equipment used in the VOA studio control rooms to broadcast live "airshows" and for pre-production and post-production operations. Under section 4, the right to operate that equipment extends to all studios in the VOA Headquarters building used for regular VOA programs and VOA/Europe, the LAPS, the studios of the New York News Bureau and Program Center, and any "studios as may be added in additional locations either in Washington or in the United States and/or its territories." Section 4 also affords RBTs the right to operate equipment used in the studio operations of Radio Marti, if the decision is made to merge Radio Marti into the mainstream VOA operations. Section 4 further provides that if the Agency merges Radio Marti into mainstream VOA, the Union's jurisdiction proposal would extend to Radio Marti technicians. We find that the subject of section 4 is the RBTs' operation of technical equipment used in the studios or studio control rooms for the broadcast of live airshows and for pre-production and post-production work.

c. Section 4 Concerns the Same Subject Addressed in Section 2-15

The Agency claims that RBTs have never operated the equipment used to perform the broadcasting functions of some of the organizational components of the VOA covered by section 4. Specifically, the Agency claims that RBTs never performed work in the studios of Radio Marti or the domestic or foreign bureaus other than New York or Los Angeles; the studios in the LAPS; and the studios in VOA Europe. The Judge found that the RBTs' duties have not included the operation of studio equipment used to perform the broadcasting functions of LAPS, the SOD studios, Radio Marti, the mix-dub centers or mini-booths or the operation of any studio equipment in domestic or foreign bureaus, other than New York and Los Angeles. The Agency asserts that "these studios are outside of NFFE's traditional work, both organizationally and operationally." Agency Brief at 49. The Agency argues that section 4 "is overbroad" and, therefore, is nonnegotiable under section 704 of the CSRA. Id. We interpret the Agency's argument as a contention that section 4 is nonnegotiable under section 704 because it is not the same subject addressed in section 2-15 of the meeting notes.

The Union states that its proposal "is clearly a modification and an improvement of the provisions in the 1966 and 1967 Meeting Notes." Union Statement at 28-29. According to the Union, the proposal is an attempt to "keep up with technological change or follow its work as management transfers it across administrative lines that are unilaterally created by the Agency." Id. at 29.

We must determine whether section 704 authorizes the Union to negotiate to extend its jurisdiction over certain technical work in specific VOA studios, to include studios which were not in existence when the parties negotiated sections 2-15 and 2-16 of the meeting notes.

Section 2-15 of the meeting notes states, in relevant part, that the parties negotiated over whether all technical equipment in the studios and control rooms should be operated only by RBTs. The Agency does not dispute that section 2-15 demonstrates that the parties negotiated over the preservation of work that RBTs performed in the Studio Section. Also, as found above, section 2-16 of the meeting notes provides evidence that the parties negotiated over the operation of professional recording equipment in the studios. Based on sections 2-15 and 2-16 of the meeting notes, we find that the operation of technical equipment in the studios and control rooms by RBTs was the subject of negotiation between the parties prior to August 19, 1972.

Consistent with the wording of section 4 and the Union's explanation, we interpret section 4 as an attempt by the Union to extend its jurisdiction over work that RBTs have traditionally performed in the studios, as set forth in section 2-15 and referenced in section 2-16, by adding within that jurisdiction studios in: (1) the LAPS; (2) VOA Europe; (3) VOA studios which are located throughout the United States and its territories or which may be added in Washington, the rest of the United States or any United States territory; and (4) the studios in Radio Marti if Radio Marti is consolidated with VOA broadcast operations. Section 4 affords RBTs the right to operate the equipment used in those organizational segments of the VOA to perform the technical functions traditionally performed by RBTs in the studios. Section 4 addresses the same specific terms and conditions of employment that were addressed in the parties' negotiations prior to August 19, 1972, as evidenced by sections 2-15 and 2-16 of the meeting notes because, like the matters addressed by those notes, it provides that RBTs shall have jurisdiction over the technical functions in VOA studios. Although some of the studios covered by section 4 were not in existence in 1972, we find that section 4 constitutes an extension of the rights that were the subject of bargaining between the parties prior to August 19, 1972, as reflected in sections 2-15 and 2-16, because it extends the right of RBTs to operate the equipment used to run a broadcasting studio to include those studios. We find, therefore, that the specific terms and conditions of employment addressed by section 4 are the same terms and conditions of employment addressed by the parties in their pre-1972 bargaining.

In summary, we find that, by providing that RBTs will have jurisdiction over work functions that RBTs traditionally performed in VOA studios, including work located in the new VOA studios, and if transferred to VOA, Radio Marti, section 4 addresses the specific terms and conditions of employment that were the subject of negotiation between the parties prior to August 19, 1972. We find, therefore, that the subject of section 4 concerns the same specific subject negotiated by the parties prior to August 19, 1972, as evidenced by sections 2-15 and 2-16 of the parties' meeting notes. Consequently, we find that bargaining on section 4 is consistent with section 704(a) of the CSRA. Accordingly, we conclude that section 4 is negotiable.

We note that section 4 is distinguishable from section 3 of the proposal, which we found nonnegotiable. Section 4 merely modifies and improves upon a specific subject negotiated by the parties prior to August 19, 1972. In contrast, section 3 attempts to claim jurisdiction over work functions that were not performed by RBTs prior to August 19, 1972. As we found above, section 3 is contrary to section 704 because it addresses a subject that was not a specific subject of negotiation between the parties and, therefore, does not address the specific terms and conditions of employment that were the subject of negotiations between the parties, prior to August 19, 1972.

5. SECTION 5. Central Recording:

Technicians of the Bargaining Unit assigned to the Central Recording Branch are responsible for the operations of broadcast audio equipment associated with the recording and playback of VOA airshows, production programs, feeds from internal and external sources routed either through studios, telephone "beeper" booths, within Central Recording or via Master Control. Technicians of the Bargaining Unit assigned to Central Recording are also responsible for the operation of cassette, reel-to-reel and video duplication equipment, IGM or other automation systems, the "Bubble" facilities, Tape Correction and High Speed facilities, and the Sound-On-Demand facility.

a. Background - Central Recording Section

Since 1966, the primary function of the Central Recording Section of VOA has been "to record programs and programming material from pre-scheduled sources for use in VOA broadcasting and for reference purposes." Judge's Report at 9. Recordings made in the Central Recording Section are made on a tape or a disc, "have always been made pursuant to specific work orders[,] and are recorded 'end-to-end,' meaning an entire event is recorded as opposed to an edited segment." Id. After a recording is made in the Central Recording Section, it is boxed and labelled and, since 1966 and at least up to the 1988 negotiations, has been sent to the Tape Library (later Audio Services) for archiving and dissemination to program personnel throughout VOA.

In 1985, VOA established a new component in its Support Services Division called "Sound on Demand." The Support Services Division and, thus, Sound on Demand, is outside of VOA's Operations Management Division. SOD "was created to record 'actualities' or sound bites from a variety of sources including tape cuts from VOA correspondent reports, interviews, features, network news programs, important proceedings, conferences, and speeches of newsmakers such as the President, and like events." Id. at 26. "Actualities" recorded by SOD are "made available[,] electronically[,] to all [l]anguage [s]ervices in the Agency to be used in the production of various programs." Id. at 27. The employees in the SOD section are not RBTs, but they operate the same equipment used by the RBTs in the Central Recording Section. "Sound on Demand staff exercise editorial judgment in determining which actualities to record while Central Recording Technicians make complete end-to-end recordings of news reports and events[.]" Id. Prior to the advent of SOD, material used by VOA was recorded in Central Recording by NFFE-represented technicians.

b. Meaning of Section 5

Section 5 of the proposal gives RBTs exclusive jurisdiction over the "operation of equipment used to record and playback programs and program materials which are routed either through studios, telephone 'beeper' booths, with the Central Recording Bank of recording cubicles or through Master Control." Id. at 29 (citing Joint Appendix at 37-39). Section 5 also addresses the operation of technical equipment in "the 'Bubble' facilities, the tape correction and high speed duplication facilities." Id. Finally, section 5 provides that RBTs have exclusive jurisdiction over cassette, reel-to-reel and video duplication performed in the Central Recording facility, and the operation of recording equipment in SOD. Section 5 "would allow non-technicians in the language services to operate equipment found in the language services to edit material as traditionally has been done." Id. We find, based on the wording of section 5 and the Union's explanation, that the subject of section 5 is the RBTs' operation of technical equipment used to record and play back programs and program materials which are routed either through studios, telephone "beeper" booths, with the Central Recording Bank of recording cubicles or through Master Control.

c. Section 5 Concerns the Same Subject Addressed in Section 2-16

The Agency objects to section 5 of the proposal on the basis that section 5 claims exclusive jurisdiction over editing equipment used in SOD and SOD's electronic distribution system. The Agency asserts that RBTs have never operated that equipment in SOD or anywhere else. See Agency Brief at 50. The Agency argues that section 5 of the proposal does not preserve traditional RBT work, is not the same as section 2-15, and, therefore, is nonnegotiable. See id.

Initially, we find, based on the evidence in the record, that section 5 establishes the jurisdiction of the RBTs who are assigned to the Central Recording Section of VOA to operate the equipment that performs the same recording and distribution functions as are performed in the Central Recording Section, but are within other segments of VOA. As we found above, section 2-16 of the meeting notes addresses the same subject. The subject of section 2-16 is the operation of "professional equipment," which included equipment in "the recording room." Judge's Report at 20. Section 2-16 of the meeting notes and section 5 of the current proposal both concern RBTs' exclusive jurisdiction over the equipment used to perform recording and distribution functions in the Central Recording Section. We note that by including recording and distribution functions now performed in SOD within the work jurisdiction of the RBTs in Central Recording, section 5 addresses the traditional work of RBTs. The Judge found that "[p]rior to the advent of [SOD], material [recorded in Sound on Demand] was recorded in Central Recording by NFFE-represented technicians."⁽¹⁹⁾ Id. at 27.

We find that section 5 of the proposal addresses the same specific terms and conditions of employment that were addressed in the parties' negotiations prior to August 19, 1972, and which are reflected in section 2-16 of the meeting notes, namely, that RBTs shall have exclusive jurisdiction over the technical functions performed by the RBTs assigned to the Central Recording section of VOA. As we noted above, by including recording and distribution functions now performed in SOD within the work jurisdiction of the RBTs in Central Recording, section 5 addresses the traditional work of RBTs because, before the creation of SOD by the Agency, the material recorded in SOD was recorded in Central Recording by NFFE-represented technicians. We find, therefore, that section 5 concerns the same specific subject negotiated by the parties prior to August 19, 1972, as evidenced by section 2-16.

Contrary to the contention of the Agency, however, we find that section 5 does not claim exclusive jurisdiction over the editing function performed in SOD. The wording of section 5 does not provide that the editing function is within the exclusive jurisdiction of the RBTs. Also, the Judge found that section 5 "would allow non-technicians in the language services to operate equipment found in the language services to edit material as traditionally has been done." Id. at 29. The Judge found that section 5 would allow non-technicians to "edit[] material obtained from Central Recording." Id.

Further, we find that the Agency's assertion that RBTs have never operated equipment associated with the VOA electronic audio distribution system is not supported by the record. At the hearing, the Deputy Chief of the OMD of VOA testified that:

Monitron is [the] electronic means by which we distribute all over the [VOA] audio signals from 99 different sources and anyone with a Monitron box such as the International Radio Broadcasters or people in sound on demand, newsroom correspondents, technicians in central recording and the studios, all of these people use the Monitron to access these 99 sources of audio for either monitoring or recording.

Transcript at 761. Thus, the evidence in the record shows that the RBTs in central recording, among other Agency employees, operated equipment associated with the VOA electronic audio distribution system for either monitoring audio signals or recording. In addition, the Judge found that RBTs assigned to Master Control "coordinate the reception, monitoring and routing of programs and audio communications received from external sources . . . ." Judge's Report at 4. In our view, the evidence in the record demonstrates that the RBTs have operated equipment associated with the VOA electronic audio distribution system and the Agency's assertion does not support a finding to the contrary.

We conclude that bargaining on section 5 is consistent with section 704(a) of the CSRA. Accordingly, we find that section 5 is negotiable.

6. SECTION 6. Technical Support:

a. Maintenance: Bargaining Unit technicians assigned to the Technical Support Branch are responsible for the maintenance of all broadcast and broadcast-related equipment in use by the VOA at its headquarters facility, the New York News Bureau and Program Center, the Los Angeles News Bureau and Program Center, various domestic VOA facilities and, as the needs of the Agency require, VOA facilities sited in host countries overseas. Such equipment includes audio consoles, cassette machines, compact disc players, turntables, microphones, cart machines, patch bays, automation and computer systems used in broadcast applications and such audio and video equipment existing or to be developed.

b. Field: Technicians of the Bargaining Unit assigned to the Technical Support Branch are also responsible for all broadcast audio equipment associated with remote site broadcasts for the VOA including remote/portable audio consoles, reel-to-reel tape machines, cassette machines, microphones, mixers, microwave equipment, stands, equipment associated with/and including the VOA Voyager Van and such routine field maintenance as is normally performed by Field technicians.

a. Background - Technical Support

As found by the Judge, the Maintenance Section of the Technical Support Branch is responsible for the design, construction, maintenance, and repair of all types of mechanical, electrical, and electronic equipment used in the origination, switching, monitoring, regulation, recording, correction, reception, and transmission to the demarcation point or "mainframe" of radio programs and program material obtained and produced by VOA for electromagnetic wave transmission and dissemination abroad.

As early as 1966, the primary function of the Field Section of the Technical Support Branch had been the recording and transmission back to VOA Washington of special event program material produced and originated at remote temporary locations in the United States and in foreign countries for broadcast on VOA. According to the Judge, the Field RBTs "provide all technical services necessary to the production of radio programs from program material obtained from the field." Judge's Report at 10.

b. Meaning of Section 6

Section 6.a provides that RBTs have exclusive jurisdiction over the maintenance of all broadcast and broadcast-related equipment in use by the VOA at its headquarters facility, the New York News Bureau and Program Center, the Los Angeles News Bureau and Program Center, various domestic VOA facilities and, as the needs of the Agency require, VOA facilities in host countries overseas, including automation and computer systems used in broadcast applications.

Section 6.b provides that RBTs are also responsible for the operation of all broadcast audio equipment associated with remote site broadcasts for the VOA, including remote/portable audio consoles, reel-to-reel tape machines, cassette machines, microphones, mixers, microwave equipment, stands, equipment used in the operation of the VOA Voyager Van and such routine field maintenance as is normally performed by Field RBTs.⁽²⁰⁾ Section 6 does not, by its terms, include the maintenance of any equipment located at transmitter sites or relay stations.

The Agency asserts that section 6 "covers maintenance functions in all of VOA's domestic and foreign relay stations and bureaus." Agency Brief at 51. The Agency also asserts that the automation and computer systems referred to in section 6 include the Satellite Interface System, "which is a system [that] 'interconnect[s]' with equipment located in all but three of the VOA domestic and overseas relay stations." Id. The Agency claims that "maintenance work in the domestic and foreign relay stations has never been done by NFFE-represented [RBTs]." Id. The Agency argues that, by including within the RBTs' work jurisdiction equipment in VOA's domestic and foreign relay stations, section 6 is overbroad because it covers more than NFFE's traditional work. The Agency contends that "for this reason[, section] 6 is [non]negotiable." Id. at 52.

Adopting the Union's interpretation of section 6, the Judge found that section 6 "does not include any maintenance of equipment located at transmitter sites or relay stations." Judge's Report at 29. The Union also states that "[t]he Union does not seek, and has never sought, to operate equipment located at transmitter sites or relay stations." Id. at 28-29. We find that the Union's statement of intent is consistent with wording of section 6 of the proposal. Thus, the record shows that section 6 does not cover maintenance work in the domestic and foreign relay stations and we interpret the proposal in this manner. We find that the subject of section 6 is the RBTs' maintenance of broadcast and broadcast-related equipment in use by the VOA at its headquarters facility, the New York News Bureau and Program Center, the Los Angeles News Bureau and Program Center, various domestic VOA facilities and, as the needs of the Agency require, VOA facilities in host countries overseas.

c. Section 6 Concerns the Same Subject Addressed in Section 2-16

The Judge found that, consistently since 1966, Field RBTs "operate all professional broadcasting equipment including professional quality tape recorders[;] and RBTs "service all VOA equipment at all locations." Id. at 15, 16 n.8. We agree with the Judge that section 2-16 of the meeting notes includes all operation and maintenance work performed by RBTs in the VOA headquarters and in the field, within the meaning of sections 6.a and 6.b. We find that the subject of section 2-16 covers the maintenance of all VOA professional broadcasting equipment at all locations. We also agree with the Judge that section 6 does not cover work in relay stations. We find that section 6 of the proposal addresses the same specific terms and conditions of employment that were addressed in the parties' negotiations prior to August 19, 1972, and that were reflected in section 2-16 of the parties' meeting notes, namely, that RBTs perform all operation and maintenance functions with respect to the technical equipment in the field. We find, therefore, that the subject of section 6 concerns the same specific subject negotiated between the parties prior to August 19, 1972, as evidenced in section 2-16 of the meeting notes. Consequently, we find that bargaining on section 6 is consistent with section 704. Accordingly, we find that section 6 is negotiable.

7. SECTION 7. Exceptions:

The following equipment is specifically non-jurisdictional and may be operated by either technicians or non-technicians:

a. Cassette machines for correspondent interviews in non-studio applications.

b. The "NEB" mini-booths (although it is specifically understood that these booths are solely for the use of NEB personnel only).

c. Such equipment packs as are set up for use by VOA correspondents and normally understood to be limited to a cassette machine, microphone, stand or clamp, cable and AC cords.

d. Such limited facilities in the language services used to feed audio over telephone circuits. It is understood by the Parties that expressly forbidden is the recording of material at these facilities for use in VOA studio programs, either live or pre-and/or post-produced.

e. The mini-booths associated with VOA/Europe, provided such mini-booths are not used for major production or for on-air purposes.

(Emphasis in original.)

a. Meaning of Section 7

Section 7 provides that certain technical equipment that would normally be reserved to the exclusive jurisdiction of the RBTs, under one or more of the preceding sections of the proposal, is not within the exclusive jurisdiction of the RBTs and, therefore, may be operated by either RBTs or other Agency employees. The equipment includes: (1) certain field equipment, News and English Broadcasting (NEB) mini-booths (which may be operated by RBTs or NEB personnel); (2) equipment in the language services which may be used by non-RBTs to feed audio over telephone circuits, but may not be used by non-RBTs "to record material for use in VOA studio programs," whether live or produced before the transmission or after the event recorded; and (3) equipment in the mini-booths associated with VOA Europe, but only if the facilities are "not . . . used for major production or on-air purposes." Judge's Report at 30. We find that the subject of section 7 is the technical equipment that will be operated by both non-technicians and RBTs.

b. Section 7 Does Not Concern the Same Subject Addressed in Sections 2-15 and 2-16

Section 7, by its terms, provides that certain technical equipment that would normally be reserved to the exclusive jurisdiction of the RBTs may be operated by either RBTs or other Agency employees. Section 7 also establishes the conditions under which Agency employees who are not RBTs will operate the technical equipment. It is undisputed, in this connection, that the other Agency personnel with whom NFFE agrees to share the RBTs' exclusive jurisdiction are represented by AFGE.

Section 7 would regulate the work assignments of employees in the AFGE-represented bargaining unit. That is, it would determine the conditions under which those employees would operate certain technical equipment and perform the technical functions that they share with RBTs. We find that, by establishing the conditions under which Agency employees who are represented by AFGE will operate specific technical equipment, section 7 does not address matters that were the subject of negotiation between the parties prior to August 19, 1972. Specifically, we find that sections 2-15 and 2-16 of the parties' meeting notes contain no evidence that the work assignments of employees in the AFGE-represented bargaining unit, or in any other bargaining unit, were matters which were the subject of negotiation between the parties prior to August 19, 1972. Thus, even assuming that the work assignments of employees in the AFGE-represented bargaining unit were matters that were appropriate for bargaining under section 704(a), such assignments were not the subject of negotiation between the parties prior to August 19, 1972. We find, therefore, that the subject matter of section 7 of the proposal addresses specific aspects of the issue of work jurisdiction that the parties did not address in negotiations prior to August 19, 1972. Thus, section 7 does not concern a subject that was negotiated by the parties prior to August 19, 1972. Consequently, we find that bargaining on section 7 is not authorized by section 704(a) of the CSRA.

We also find that section 7 is not otherwise negotiable under the Statute. Compare Lower Colorado Region, 41 FLRA at 12-17 (because union office space is a subject that is negotiable under the Statute, the subject also is negotiable for employees entitled to bargain pursuant to section 704 even though union office space was not the subject of negotiations between the parties prior to August 19, 1972). In Cherry Point, the court noted "the fundamental principle that a union is the exclusive representative of employees in the . . . recognized unit, and those employees only." Cherry Point, 952 F.2d at 1442 (emphasis in original). Consistent with this principle, the court held, as relevant here, that a union may not seek to "regulate the conditions of employment of . . . employees in other bargaining units[.]" Id. at 1443. According to the court, "[s]uch bargaining proposals are impermissible" under the Statute. Id.

We found above that section 7 of the proposal in this case would determine the conditions under which employees in the AFGE-represented bargaining unit would operate certain technical equipment and perform the technical functions that they share with RBTs. Because section 7 seeks to regulate the conditions of employment of employees in the unit represented by AFGE, under the analysis in Cherry Point, section 7 is nonnegotiable under the Statute.⁽²¹⁾ See International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086 (1993) (the Authority found that by attempting to establish a competitive area that encompassed both bargaining unit positions and positions in other units, the proposal attempted to regulate the conditions of employment of employees in bargaining units other than those represented by the union, and, therefore, was nonnegotiable).

IX. Order

The petition of review is dismissed as to sections 3 and 7 of the proposal. The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on sections 2, 4, 5, and 6 of the proposal and on section 1 to the extent that it is negotiable.⁽²²⁾

APPENDIX A

Section 704 of the CSRA, codified at 5 U.S.C. § 5343 (Amendments), provides that:

(a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act (Oct. 13, 1978) in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph.

(b) The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of--

(A) chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph;

(B) subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or

(C) any rule, regulation, decision, or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code.

Section 9(b) of Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments), provides that:

The amendments made by this Act shall not be construed to--

(1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act [Aug. 19, 1972] pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees;

(2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act [Aug. 19, 1972] for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or

(3) nullify, change, or otherwise affect in any way after such date of enactment [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date [Aug. 19, 1972].

APPENDIX B

JURISDICTION

SECTION 1. Introduction:

Both Parties recognize that jurisdiction over the operation of technical equipment by the Radio Broadcast Technicians of the NFFE Local 1418 Bargaining Unit at the Voice of America was the subject of substantive negotiations between the Parties prior to August 19, 1972. Therefore, the jurisdiction over technical equipment by the Radio Broadcast Technicians in the Bargaining Unit is as follows:

SECTION 2. Master Control:

Bargaining Unit technicians assigned to the Master Control Branch shall operate, maintain or otherwise be responsible for all equipment associated with the broadcast of VOA programs and/or the routing of audio to and/or from internal and/or external broadcast sources via Master Control.

Technicians in the Bargaining Unit assigned to Master Control shall also operate and/or be responsible for computer and automation systems which assist in the broadcast or routing of audio in program, feed and/or production modes. In addition, technicians in the Master Control Branch shall be responsible for such transmission requirements related to Master Control as pertains to satellite, microwave and land line facilities.

SECTION 3. World Operations Control (WOCC):

Technicians of the Bargaining Unit assigned to the World Operations Control Center (WOCC) shall operate, maintain and/or otherwise be responsible for the equipment associated with the WOCC and the Satellite Interface System (SIS) including computer and automation systems responsible for the transmission and/or reception of broadcast audio, and/or for adjustments to transmission sites as would normally be communicated and/or controlled from this facility.

SECTION 4. Studios:

Technicians of the Bargaining Unit assigned to the Studio Branch are responsible for the operation of all audio, computer and automation equipment used in the VOA studio control rooms associated with the broadcast of live airshows and pre-/post-production operations. Studios, in this sense, refer to all studios in the VOA Headquarters Building including those studios used for regular VOA programs and

VOA/Europe, the language area production studios (LAPS), and the studios of the New York News Bureau and Program Center, and such studios as may be added in additional locations either in Washington or in the United States and/or its territories. If consolidation of VOA operations merges Radio Marti into the mainstream VOA broadcast operations, jurisdiction shall extend to the Radio Marti operations and technicians. Equipment refers to computer and automation systems commonly developed for broadcast applications, audio consoles, turntables, cartridge machines, compact disc players and cassette machines, reel-to-reel tape machines, microphones, patch bays, equalizers, remote control devices and like or similar equipment.

SECTION 5. Central Recording:

Technicians of the Bargaining Unit assigned to the Central Recording Branch are responsible for the operations of broadcast audio equipment associated with the recording and playback of VOA airshows, production programs, feeds from internal and external sources routed either through studios, telephone "beeper" booths, within Central Recording or via Master Control. Technicians of the Bargaining Unit assigned to Central Recording are also responsible for the operation of cassette, reel-to-reel and video duplication equipment, IGM or other automation systems, the "Bubble" facilities, Tape Correction and High Speed facilities, and the Sound-On-

Demand facility.

SECTION 6. Technical Support:

a. Maintenance: Bargaining Unit technicians assigned to the Technical Support Branch are responsible for the maintenance of all broadcast and broadcast-related equipment in use by the VOA at its headquarters facility, the New York News Bureau and Program Center, the Los Angeles News Bureau and Program Center, various domestic VOA facilities and, as the needs of the Agency require, VOA facilities sited in host countries overseas. Such equipment includes audio consoles, cassette machines, compact disc players, turntables, microphones, cart machines, patch bays, automation and computer systems used in broadcast applications and such audio and video equipment existing or to be developed.

b. Field: Technicians of the Bargaining Unit assigned to the Technical Support Branch are also responsible for all broadcast audio equipment associated with remote site broadcasts for the VOA including remote/portable audio consoles, reel-to-reel tape machines, cassette machines, microphones, mixers, microwave equipment, stands, equipment associated with/and including the VOA Voyager Van and such routine field maintenance as is normally performed by Field technicians.

SECTION 7. Exceptions:

The following equipment is specifically non-jurisdictional and may be operated by either technicians or non-technicians:

a. Cassette machines for correspondent interviews in non-studio applications.

b. The "NEB" mini-booths (although it is specifically understood that these booths are solely for the use of NEB personnel only).

c. Such equipment packs as are set up for use by VOA correspondents and normally understood to be limited to a cassette machine, microphone, stand or clamp, cable and AC cords.

d. Such limited facilities in the language services used to feed audio over telephone circuits. It is understood by the Parties that expressly forbidden is the recording of material at these facilities for use in VOA studio programs, either live or pre-and/or post-produced.

e. The mini-booths associated with VOA/Europe, provided such mini-booths are not used for major production of for on-air purposes.

APPENDIX C

ADMINISTRATIVE LAW JUDGE'S

REPORT OF FINDINGS

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

1. We grant the Union's request that the Authority consider the various sections of the proposal as severable. In our analysis of the proposal, we will rule separately on those portions of the proposal which we conclude are able to stand independently of the rest of the proposal and which have been specifically addressed by the parties. See, for example, American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 750 n.1 (1990) (the Authority will grant a request to sever portions of a disputed proposal where such portions can stand independently of the proposal and the portions have been specifically addressed by the parties). Consequently, we reject the Agency's argument that we must find the proposal nonnegotiable in its entirety if any part of the proposal does not meet the requirements of section 704 of the CSRA. See Agency's Post-Hearing Brief at 23.

2. Section 704 of the CSRA and section 9(b) of the PRSA are set forth in full in Appendix A to this decision.

3. The Judge's Report is attached as Appendix C to this decision.

4. The legislative history of section 704 indicates that the purpose of section 704 is to "insure that qualified craft employees of the Federal Government 'enjoy comparable terms and conditions of employment' to employees in the same crafts in the private sector, so that such employees are not lost to Federal service." Bonneville, 22 FLRA at 1002 (quoting Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) (Legislative History), at 857 (statement of Congressman Ford)). In our view, that statement in the legislative history of section 704 indicates an intent that agreements negotiated under section 704 reflect the terms and conditions of employment that are contained in agreements negotiated for the benefit of private sector employees, including, where it otherwise would be consistent with law in the private sector, provisions relating to work jurisdiction. See, for example, United States Department of Interior, Bureau of Reclamation, Washington, D.C. v. FLRA, No. 92-1625, slip op. at 13 (D.C. Cir. May 20, 1994) (Bureau of Reclamation v. FLRA) (The legislative history of sections 9(b) and 704, "coupled with the principle that [F]ederal sector labor law often is guided by settled authority from the private sector, persuade[d the court] that sections 9(b) and 704 were designed to preserve for prevailing rate employees the same scope of bargaining enjoyed by private sector workers for those issues that were subjects of negotiation prior to enactment of the PRSA.").

5. We note, however, that if any of the sections of the proposal are preserved for negotiation under section 704(a) of the CSRA, Cherry Point would not render those sections of the proposal nonnegotiable. Section 704(a) permits parties to bargain over subject matters preserved for negotiation under section 704(a) "without regard to any provision of [the Statute]." 5 U.S.C. § 5343 note.

6. We note that in our discussion, below, concerning the applicability of Cherry Point to section 7 of the proposal, we find that, under the analysis in Cherry Point, section 7 is nonnegotiable because it seeks to regulate the conditions of employment of employees in the AFGE bargaining unit.

7. Section 704(b) provides that terms and conditions of employment described as "pay and pay practices" may be negotiated only in accordance with current prevailing rates and practices in the industry. See generally National Federation of Federal Employees, Local 1487 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Project Office, Yuma, Arizona, 44 FLRA 945 (1992).

8. The parties are responsible for providing evidence concerning these matters, and a party's failure to provide such evidence may result in determinations that are adverse to its position. In the hearing before the Judge in this case, the parties provided evidence which described, both currently and historically, the Agency's operations and organization, the duties performed by employees in the NFFE and AFGE units, the equipment operated by those employees, the technical functions that were the responsibility of those employees, and the parties' collective bargaining history.

9. Section 2-15 of the notes of the parties' July 7, 1966, labor-management meeting provides:

Management and Union agree to delete the first section. It was agreed that all technical equipment in the studio and control room shall be operated by technical personnel only, and that program levels and quality shall follow the prescribed principles of good engineering practice, and that it shall be the technician's responsibility to see that these standards are maintained. Any digression by Production from these practices shall be logged by the technician for action by the Technical Services Division.

NFFE and USIA, 37 FLRA at 1391.

Section 2-15 of the October 11, 1967, Union meeting notes provides:

It shall be the policy that all technical equipment in the Studio Control Room shall be operated by technical personnel only, and it shall be the technician's responsibility to see that the program levels and quality shall follow the prescribed principles of good engineering practice, and that any digression from these practices shall be logged by the technician for action by the Technical Operations Division.

Id. at 1392.

10. The Agency argues that the Judge improperly credited and relied on Oringel's testimony in making his findings in this case. The Agency's arguments pertain to the Judge's credibility findings. The demeanor of witnesses is an important factor in resolving issues of credibility. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA 1210, 1220 n.11 (1993), petition for review filed, No. 93-1199 (D.C. Cir. Mar. 11, 1993). We note in this regard that the Agency admits that "[o]ther than the notes themselves, there is only the testimony of Robert Oringel . . . as evidence of what led up to the meetings and what was NFFE's intention in the meetings." Agency's Comments to Judge's Report of Findings at 15. The Agency also acknowledges that it did not provide any witnesses to the 1966 and 1967 negotiations whose testimony contradicted that of Oringel. See id.

11. Section 2-16 of the notes of the parties' July 7, 1966, labor-management meeting provides:

Management states that policies have been established relative to this item, and a change in present policy would mean increased manpower requirements and overtime. No agreement was possible on this proposal. The Union's position is that quality control can only be exercised when a technician is operating professional equipment, and that job category distinctions should be maintained. Technicians should not do announcer duties nor should announcers be required to do technician[s'] work.

Section 2-16 of the notes of the parties' October 11, 1967, labor-management meeting provides:

Under this item the Union asks that no professional recording equipment, portable or otherwise, be operated by anyone other than a technician. There was no agreement on this proposal. Management stated that policies have been established relative to this item, and a change in present policy would mean increased manpower requirements and overtime. The Union representatives stated that they will continue to pursue this item.

12. From 1966 to 1988, private communications companies were responsible for the transmission of radio signals. See Judge's Report at 4.

13. We reject the Agency's assertion that section 2 covers work done in the Traffic Division of VOA which was never performed by the RBTs. The wording of section 2 does not specifically cover the Traffic Division. The Agency acknowledges that the Union clarified at the hearing that section 2 does not cover the Traffic Division's computer system. See Agency's Brief at 44 (citing Transcript at 502, 708; NFFE's Proposed Findings of Fact at 31). Furthermore, the Judge found that the proposal "does not extend to programming or operating the computer system to create or distribute [the switching] schedule" produced in the Traffic Management Division. Judge's Report at 28.

14. The descriptions of the RBTs' duties prior to 1972 "is primarily taken from portions of 1966 job descriptions" which the Judge found presented "a reasonably accurate description of the duties and functions of the particular technicians involved." Judge's Report at 4 n.4.

15. The Supreme Court expressed a similar view in Longshoreman's Ass'n, where the Court stated that "[i]dentification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are seeking to preserve[.]" Longshoreman's Ass'n, 447 U.S. at 507.

16. In discussing BIA and Reclamation above, we noted that, in determining whether a current proposal concerned a matter that was the subject of negotiation prior to 1972, the courts in those cases considered, among other things, whether Congress had expressed any intent through legislation as to the scope of a subject. We stated that, in making that same determination, we would also consider any such expression of Congressional intent. We note, with respect to section 2 and the remaining sections of the proposal, that the parties presented no evidence in the record that Congress has expressed any intent through legislation as to the scope of any subject matter relating to RBTs' duties at the VOA. Accordingly, in the absence of any Congressional intent in this regard, this factor does not affect our determinations as to the negotiability issues before us in this case.

17. In 1959, what is now known as the OMD was known as the Washington Plant Division. Later, it was known as the Technical Operations Division. In 1965, the Technical Operations Division was called the Technical Services Division. The 1965 letter granting NFFE exclusive recognition described the unit as consisting of "non-supervisory radio broadcast technicians in several sections of 'the Technical Services Division, Broadcasting Service, Washington, D.C.'" Judge's Report at 25. Since 1988, the division has been known as the Operations Management Division. The Judge found that "[t]hese name changes have had no impact on the performance of technical functions by NFFE-represented technicians." Id. at 26.

18. The Judge did not discuss the specific similarities and differences between the Radio Marti technician positions and the RBT positions. However, according to the Agency, Radio Marti has a "unique mission to broadcast a different mix of information than the typical broadcaster; it had a different mission and it had heightened security concerns" relating to the Cuban government's opposition to Radio Marti. Agency's Post-Hearing Proposed Findings of Fact at 62 (citing Transcript at 565-66). The Agency also stated that, when Radio Marti was created, its technical positions were established under the standard position classification process and "loosely correspond[ed] to [RBTs], but ha[d] somewhat different duties associated with broadcasting to Cuba." Id.

19. See also Judge's Report at 9-10 and 14-16 for a complete listing of the duties performed by RBTs and the equipment operated by RBTs in the Central Recording Section, beginning in 1966.

20. The VOA Voyager Van "was a mobile home that was equipped with a tiny studio sent out to cover stories in remote locations. Originally, the technical equipment on board was operated by NFFE technicians, but later management gave these duties to non-technicians." Judge's Report at 34. "AFGE-represented employees are performing duties that were historically performed by NFFE-represented field technicians in the operation of technical equipment in the VOA Voyager Van." Id. The Voyager Van and its equipment "are essentially similar to the Mobile Broadcast Unit that VOA had formerly operated with NFFE-represented field technicians." Id.

21. As we noted above, however, in connection with our discussion of extra-unit effects, proposals that are preserved for negotiation under section 704(a) of the CSRA would not be nonnegotiable under Cherry Point because section 704(a) permits parties to bargain over subject matters preserved for negotiation under section 704(a) "without regard to any provision of [the Statute]." 5 U.S.C. § 5343 note. Thus, if section 7 had been preserved for negotiation under section 704(a), Cherry Point would not render the proposal nonnegotiable.

22. In finding these sections of the proposal to be negotiable, we make no judgment as to their merits.

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