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56 FLRA No. 181
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 96
U.S. ARMY CORPS OF ENGINEERS
DECISION AND ORDER ON
December 28, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns one multi-part proposal relating to relocation of an Agency organizational unit. [n1] The Agency filed a Statement of Position. [n2] The Union did not file a Response to the Agency's Statement of Position.
For the reasons that follow, we find that the proposal affects management's right to determine its organization under § 7106(a)(1) of the Statute and dismiss the petition for review.
II. Proposal [n3]
MITIGATION FOR RE-LOCATION
Section 10.1. It is recognized that the EMPLOYER is considering relocation of several or all employees within the bargaining unit to other than the Wm. S. Moorhead Federal Building location. It is also recognized that such movement could be disruptive and adverse to a majority of EMPLOYEES in the bargaining unit. It is also recognized that the present location is advantageous for many services and facilities for both the EMPLOYER and EMPLOYEE.
Section 10.2. It is, therefore, agreed, in accordance with Section 2.1.c.(3), that prior to any move greater than 2 blocks from the present location the following conditions, which are also available in the present location, will also be provided in an equal or greater standard as presently provided at the Wm. S. Moorhead Federal Building:
(1) An automatic fire sprinkler system;
(2) A full[-]time Fire department service in the municipality;
(3) A full[-]time Police department service in the municipality;
(4) A security service will be provided to building;
(5) Guests entering the building will be required to enter through a metal detector;
(6) Accompaniment upon request at parking facilities;
(7) A full[-]time EMT department service in the municipality;
(8) Major medical (hospital) facilities;
(9) On[-]site health facility.
(1) Day care facility on premises;
(2) At least three banking centers will be available within 5 blocks;
(3) Public transportation;
(4) Retail outlets;
(5) Eating establishments;
(6) Adequate and available parking within 5 blocks. [ v56 p1034 ]
Section 10.3. It is also agreed, in accordance [with] Section 2.1.c.3., that prior to any move greater than 2 blocks from the present location that the EMPLOYER will secure a maximum RETENTION ALLOWANCE for all categories within the bargaining unit. This would serve as mitigation for the adversities instilled upon the EMPLOYEE as a result of the move.
Section 10.4. The EMPLOYER [will] provide full disclosure as to any and all plans for relocation of personnel immediately upon discussion of the subject.
Section 10.5. This article shall not apply to voluntary relocations by an EMPLOYEE under any alternative site work arrangement.
III. Positions of the Parties
The Agency contends that because the proposal imposes conditions on management's decision as to the geographic location where it will conduct its operations, the proposal affects management's right to determine its organization under § 7106(a)(1) of the Statute.
The Agency also claims that Section 10.3. of the proposal is inconsistent with law, 5 U.S.C. § 5754, and Government-wide regulation, 5 C.F.R. §§ 575.301 and 304, because it requires the payment of a retention allowance to individuals who would not meet the legal and regulatory requirements for such an allowance.
Finally, the Agency maintains that Section 10.2.a.(6). of the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute because it would require the assignment of an employee to accompany another employee to a parking facility.
The Union did not file a response to the Agency's statement of position and so did not address the Agency's claims set forth above.
IV. Analysis and Conclusions
The Authority's Regulations prescribe the sequence in which the parties file their positions in a negotiability appeal. See AFGE, Local 1904, 56 FLRA 787, 787 n.2 (2000). As relevant herein, that sequence provides for an agency statement of position in response to a union's petition for review, § 2424.24, and a union response to the agency's statement of position, § 2424.25.
The Authority's regulations also prescribe the purpose and contents of the specified filings. Specifically, as relevant herein, § 2424.25(a) provides that the purpose of the union's response "is to inform the Authority and the agency why, despite the agency's arguments in its statement of position, the proposal . . . is within the duty to bargain . . . and whether the union disagrees with any facts or arguments in the agency's statement of position." To that end, § 2424.25(c) provides that the union's response must set forth its disagreement with the agency's negotiability claims, stating, in particular, its arguments supporting any assertion that a proposal does not affect a management right under § 7106(a) of the Statute or that an exception to management's rights applies.
Further, § 2424.32 of the Authority's Regulations prescribes the parties' respective burdens in the negotiability process and the consequences that result from a failure to meet those burdens. In particular, under § 2424.32(c)(2), a party's "[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion."
Applying those regulations to this case, it should be noted at the outset that the Agency filed a statement of position asserting, with argument and case support, that the proposal affects management's rights under § 7106(a) and is inconsistent with law and Government-wide regulation. The Union did not file a response to the Agency's statement of position and, thus, did not dispute the Agency's assertions. Moreover, nothing in the attachments to the petition for review indicates that the Union ever disputed the Agency's management right claim. Further, the Union did not argue, either in its petition or in the attachments thereto, that the proposal fell within any of the listed exceptions to management's rights. [n4]
Consequently, applying § 2424.32 of the Authority's Regulations in these circumstances, we find that the Union failed to meet its burden of responding to the Agency's arguments. Pursuant to § 2424.32(c)(2), therefore, the Union's failure to respond constitutes a concession that the proposal affects management's right to [ v56 p1035 ] determine its organization and is outside the duty to bargain. In this regard, the Authority has held that proposals pertaining to the geographical location where employees or organizational units will conduct the agency's operations concern the exercise of management's right to determine its organization under section 7106(a)(1) of the Statute, see, e.g., NFFE, Local 7, 53 FLRA 1435, 1438-39 (1998). Consequently, under § 2424.40 of our Regulations, we dismiss the petition for review.
The petition for review is dismissed.
Footnote # 1 for 56 FLRA No. 181
In its petition for review the Union requests a hearing in this case under § 2424.31(c) of the Authority's Regulations. Because the Union has not demonstrated a need for a hearing, we deny its request.
Footnote # 2 for 56 FLRA No. 181
In its allegation of nonnegotiability the Agency acknowledged that it had a duty to bargain over the impact and implementation of any decision to relocate employees, but argued that it had not at that point made such a decision and, thus, the Union's proposal was premature. See Attachment to Petition for Review. In its statement of position, however, the Agency states that the proposal was offered in term negotiations, essentially withdrawing its claim based on the proposal being premature.
Footnote # 3 for 56 FLRA No. 181
The parties agreed at the post-petition conference that the proposed article should be numbered "Article 10." The Union did not request severance of any of the various subsections of the proposal. See Report of Post-Petition Conference at 2.
Footnote # 4 for 56 FLRA No. 181
Because the Union did not request severance, it is not necessary to address the Agency's claims that Section 10.3. of the proposal is inconsistent with 5 U.S.C. § 5734 and 5 C.F.R. §§ 575.301 and 304 or that Section 10.a.(6). of the proposal affects management's right to assign work. See, e.g., AFGE, Local 2031, 56 FLRA 32, 33 n.6 (2000) (AFGE, Local 2031). It is sufficient for purposes of disposing of the petition for review to consider only the Agency's claim that the proposal affects management's right to determine its organization under § 7106(a)(1).