[ v53 p1334 ]
The decision of the Authority follows:
53 FLRA No. 118
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES
LIBRARY OF CONGRESS
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 25, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman (1) and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals.(2)
The first proposal would provide certain parking spaces to employees in the Union's bargaining unit. The second proposal would permit employees whose work product was substantively changed to submit a "statement expressing their disagreement," which would be maintained in the employer's files.
II. Proposal 1
ARTICLE 12. PARKING
Section 1. Unit employees represented by the Guild shall be given access to parking spaces in the same proportion as the number of unit members to the Library population as a whole.
Section 2. The Library agrees that, in most instances, in the interest of increased efficiency, the assignment of individual reserved spaces should be minimized.
Section 3. The Library shall review the allocation of parking spaces (including after 4:00 parking) in April and October of each year and make any necessary adjustments.
Section 4. The Library will assign bargaining unit employee parking spaces in the following order of priority:
A. Pursuant to 41 CFR 101, parking privilege preference will be given to:
1. permanently handicapped employees;
2. employees who work unusual hours;
3. car pools and van pools;
4. all other vehicles.
B. In determining car pool and van pool assignments, the Library will continue the practice of assigning highest priority to car pools and van pools consisting of the highest number of regular Library staff members. When car pools with an equal number of regular members exceed the number of spaces available for assignment, priority shall then be determined by assigning spaces to those car pools whose full-time members have the highest total number of years of Library service. Insofar as possible, car pools and van pools will be assigned preferred locations, according to their priority.
A. Positions of the Parties
The Agency states that its current practice for allocating parking spaces is governed by an Agency regulation, LCR 1818-4, which does not mention bargaining unit status and which provides the following order for assignment of spaces: (1) official use; (2) disabled employees; (3) employees who work special schedules; (4) car pools; and (5) individual employees, in order of seniority. Statement of Position at 6. According to the Agency, no parking spaces are currently available for individual employees because there are more requests for car pool spaces than there are spaces available.(3) Id. at 6, 7.
The Agency argues that the proposal is outside the duty to bargain because it "effectively" requires bargaining over conditions of employment of management employees. Id. at 5. In particular, the Agency asserts that the Union's proposal would directly affect the conditions of employment of employees outside the unit because the effects of the proposal -- allocating spaces by bargaining unit status, disfavoring individual spaces, and changing the priorities for spaces -- would disqualify existing space holders, including non-unit employees. Id. at 8. The Agency claims that this case is "indistinguishable" from 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) and American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, 49 FLRA 1074 (1994). Statement of Position at 8.
The Agency also claims that the "[b]argaining history" between it and the three unions representing Agency employees is "consistent with the idea" that parking is outside the duty to bargain. Id. at 8. In support of this, it asserts that the current regulation was established through consultation, not negotiation, and that its three collective bargaining agreements contain virtually identical provisions referring to the parking regulation.
The Union responds that a proposal that does not directly determine whether non-unit employees will be assigned parking spaces is within the duty to bargain despite any indirect effect the proposal may have on non-unit employees. Union Response at 2, citing National Federation of Federal Employees, Local 1943 and Naval Air Rework Facility, Naval Air Station, Jacksonville, Florida, 29 FLRA 250 (1987). The Union distinguishes the proposal here from those at issue in AFGE, Local 2879 and Cherry Point. The Union contends that, in those cases, the proposals would have explicitly governed the parking spaces of all employees. In contrast, the Union asserts that the proposal here leaves the Agency free to provide parking spaces for non-unit employees as it sees fit. Response at 2, 4.
The Union asserts that the fact that parking spaces are not currently allocated according to bargaining unit status has no bearing on whether the proposal is within the duty to bargain. Id. at 4. The Union also disputes the relevance of the parties' bargaining history, stating that the Agency's bargaining obligation is not eliminated "simply because it has not [bargained] in the past." Id. at 5.
B. Meaning of the Proposal (4)
The proposal would require the Agency to grant unit members parking spaces in numbers proportionate to the percentage of unit members among the employees of the Agency. The proposal provides that the Agency will continue granting parking spaces according to considerations such as whether an employee is handicapped, whether an employee works unusual hours, and whether a vehicle is part of a car or van pool. However, the proposal requires that, in applying these considerations, the Agency provide a proportionate number of parking spaces to unit members.
C. Analysis and Conclusions
A proposal that directly determines the conditions of employment of non-unit employees, including supervisors, is outside the duty to bargain.(5) American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 505-13 (1995) (OPM), aff'd sub nom. American Federation of Government Employees v. FLRA, 110 F.3d 810 (D.C. Cir. 1997). However, the fact that a proposal affects non-unit employees is not sufficient to remove it from the duty to bargain. In this regard, "[n]early every bargaining proposal, if accepted, will have some effect on non-unit personnel." Id. at 815. That a proposal has an indirect effect on non-unit employees may relate to its reasonableness or merits, but does not render the proposal outside the duty to bargain. Id.; and Cherry Point, 952 F.2d at 1441 n.8. Accordingly, proposals that directly implicate the working conditions of unit employees, and that are otherwise within the duty to bargain, are not removed from the duty simply because they also affect non-unit employees. Id.
The precise line between proposals that have an indirect effect on non-unit employees, and proposals that have a direct effect may be difficult to discern, but nothing on the face of this proposal indicates a direct effect on non-unit employees. The Union's proposal would require the Agency only to provide a proportionate number of parking spaces to unit members. It would not directly determine the allocation of parking spaces to non-unit employees. Although allocation of spaces to employees in the Union's unit obviously would reduce the number of spaces available to others, that effect is not sufficient to remove the proposal from the Agency's duty to bargain. In this regard, the court held, in Cherry Point, that a proposal that determined parking for all employees, not just bargaining unit members, was outside the duty to bargain because it directly determined conditions of employment of non-unit employees. Cherry Point, 952 F.2d at 1441-42. However, the court also stated that a proposal requiring the agency to allocate all parking spaces to unit employees would be within the duty to bargain. The court stated that:
Such a proposal arguably would be unreasonable, for, if accepted, it would leave no parking space for persons outside of the unit. But 'reasonableness' does not determine whether a subject is bargainable. The employer's recourse in response to such a proposal is to reject it or to counter with a more reasonable proposal.
Cherry Point, 952 F.2d at 1441 n.8.
Consistent with Cherry Point, as the Union's proposal does not directly determine conditions of employment of non-unit employees, it is within the duty to bargain unless it is removed from that duty for some reason other than the effect of the proposal on such employees. The Agency's sole other basis for asserting that the proposal is outside the duty to bargain is that: "[b]argaining history at the Agency is consistent with the idea that parking policy is outside the duty to bargain." Statement of Position at 8. However, such bargaining history is not relevant to determining whether the proposal is within the duty to bargain. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478, 483 (1986), vacated as to other matters sub nom. American Federation of Government Employees, Local 32 v. FLRA, 853 F.2d 986 (D.C. Cir. 1988). Thus, we conclude that Proposal 1 is within the duty to bargain.
III. Proposal 2
ARTICLE 33 LAW LIBRARY
Section 2. In cases where substantive changes were made in a Law Library work product, primary or other contributors may supply a written statement expressing their disagreement with these changes. The statement will be kept together with the final approved report in the division file.
A. Positions of the Parties
The Agency asserts that the Union has conceded in discussions with the Agency that this proposal would allow employees to use duty time to prepare responses to management changes to their work. As such, the Agency argues that the proposal would interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. Statement of Position at 13.
The Agency disputes the Union's contention that this proposal is an appropriate arrangement for adversely affected employees under section 7106(b)(3). The Agency claims that employees are not adversely affected by a management decision to substantively change their work because such changes are made to improve the work product. Id. Moreover, according to the Agency, if an employee objects to the changes, the work product can be sent out under the division chief's -- not the employee's -- name.
The Union argues that submitting a statement of disagreement in the record has no impact on management's discretion to direct employees and to assign work. The Union also asserts that the proposal is an appropriate arrangement. It explains that the employees are legal scholars whose professional reputations may be damaged by changes in their work product. According to the Union, the written statement of disagreement encompassed by the proposal is designed to preserve and protect the employees' reputations.
B. Meaning of the Proposal
This proposal provides that when changes are made to "Law Library work products," any author who contributed to the work product may write a statement expressing disagreement with the changes. The statement would be kept with the final product in a file. The proposal does not expressly state whether the author of the statement could use duty time to produce the statement. However, as the Union has not disputed the Agency's contention that employees could write their dissents during duty time, we construe the proposal as permitting employees to do so. See American Federation of Government Employees, Local 3369 and U.S. Department of Health and Human Services, Social Security Administration, Patchogue, New York, 49 FLRA 793, 797 (1994) (because union did not dispute agency interpretation of a proposal, the Authority accepted the agency interpretation).
C. Analysis and Conclusions
A proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute if the proposal requires management to assign duty time for a particular task. See, e.g., American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 359 (1991) (proposal requiring agency to permit employees to use duty time for physical fitness activities directly affects the agency's right to assign work); American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 594 (1991) (proposal requiring agency to dispatch an individual to obtain food for employees performing overtime directly affects management's right to assign work). Because this proposal would require management to grant duty time to write dissents, the proposal affects management's right to assign work.
As the proposal affects the Agency's right to assign work, it is outside the duty to bargain unless it is encompassed by section 7106(b). The only Union claim in this regard is the Union's assertion that "the proposal constitutes an appropriate arrangement" to overcome the adverse effect on employees' professional reputations when their work products are changed.(6) Response at 10.
The approach for determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. If the proposal is an arrangement, the Authority then determines whether it is "appropriate." An arrangement within the meaning of section 7106(b)(3) must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). That is, section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996) (National Border Patrol Council).
The Union does not explain, and the proposal does not by its terms speak to, the manner in which this proposal would address or compensate for an adverse effect resulting from the exercise of a management right. Where, as here, a union offers no arguments or authority to support an assertion that a particular proposal is included within section 7106(b), the Authority rejects the assertion. See American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center, and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 610 (1997) (Army Aviation Center) (Authority rejected union's bare assertion that proposal was encompassed by section 7106(b)(1)); American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996) (Authority rejected a union's bare assertion that a proposal was a negotiable procedure under section 7106(b)(2)); National Border Patrol Council, 51 FLRA at 1317 (Authority determined that because the union did not explain, and the proposal did not speak to, the manner in which a disputed portion would address adversely affected employees, that portion did not constitute an arrangement under section 7106(b)(3)). It is well established, in this regard, that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, e.g., National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 53 FLRA 139, 141-42 (1997), petition for review filed, No. 97-1522 (D.C. Cir. Aug. 25, 1997). See also National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982)(the Authority is not expected, sua sponte, to locate, analyze and apply all arguably pertinent statutes and regulations).
In view of the Union's failure to support its allegation that the proposal constitutes an appropriate arrangement, we reject the claim. Accordingly, as the proposal affects management's right to assign work, the proposal is outside the duty to bargain.
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposal 1. The petition for review is dismissed as to Proposal 2.
(If blank, the decision does not have footnotes.)
1. Member Wasserman recused himself from this case.
2. The Union states that two other proposals contained in its petition for review, as well as other sections of the proposals considered here, are moot. Union Response to Agency Statement of Position at 1; and Union Response to Order to Show Cause.
3. The Agency also presents a detailed statistical breakdown of the composition of its current 246 car pools. Of these, only 6 percent consist entirely of employees in the Union's bargaining unit. Fifteen percent consist entirely of employees in a unit represented by the American Federation of State County and Municipal Employees, Local 2477; 1.6 percent consist entirely of employees in a unit represented by Congressional Research Employees; 7 percent consist of non-bargaining unit employees; and 70 percent consist of a mixture of employees from different units or no unit. Statement of Position at 7.
4. The meaning we adopt for a proposal in deciding a negotiability appeal would apply in resolving other disputes, such as arbitration proceedings, where construction of the proposal is at issue. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 n.8 (1996).
5. However, "an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors" because such proposals address permissive subjects of bargaining. American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 681-82 (1996) (AFGE, Local 3302). Accordingly, "[o]nce an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute." Id. at 682.
6. We note that the Authority has previously held that a proposal allowing employees to write certain dissents for placement in certain agency files was negotiable at the agency's election under section 7106(b)(1) because it concerned a "method" of performing work. National Federation of Federal Employees, Local 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA 369, 373-74 (1984) (Forest Service). There is no assertion that Forest Service should be applied in this case and no argument as to whether, if it applies, the differences between the proposal in this case and the one reviewed in Forest Service are relevant. For example, the dissents at issue in Forest Service were to become part of the final work product. Id. at 373. The Union asserts in this case that the dissents would remain in the file and would not become part of the final work product. Response at 10 n.4, and final sentence of proposal.