American Federation of Government Employees, Local 2923 (Union) And United States Department of Health And Human Services, National Institute of Health, National Institute of Environmental Health Sciences (Agency)
64 FLRA No. 56
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
NATIONAL INSTITUTE OF HEALTH
NATIONAL INSTITUTE OF ENVIRONMENTAL HEALTH SCIENCES
December 31, 2009
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the American Federation of Government Employees, Local 2923 (the Union) under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal that the Union seeks to sever into two proposals. The National Institute of Environmental Health Sciences (the Agency) filed a statement of position (SOP). The Union filed a response to the Agency’s SOP.
For the reasons that follow, we find that the proposal is within the duty to bargain.
The First Environments Early Learning Center (the day care center) is located on federal government property in a building operated by the Environmental Protection Agency (EPA). Conference Record at 2. The building housing the day care center was built with funding from both the Agency and the EPA. See id. The Agency also provides financial support for the day care center’s operation. See id.; see also SOP at 2. In addition, the Agency has a designated member on the building’s Integrated Pest Management System (IPMS) Advisory Team. See Union’s Response at 4 (citing Attachment 4 at 2).
The [Agency] will not pay [for] or approve any application of any pesticide at [the day care center].
The [Agency] will work closely with [the day care center] and/or any contractors or other groups involved in operations at [the day care center] to ensure or provide an [IPMS] that is nontoxic and does not use pesticides. This will help ensure a pesticide free and nontoxic environment for the children and infants at [the day care center].
Petition at 4.
IV. Meaning of the Proposal
According to the Union, the proposal would operate to “inhibit the Agency from paying [for] or approving of pesticides at the day care center.” Union’s Response at 8. The Union explains that the meaning of the word “approve” as used in the proposal means the same as “authorize.”
The second and third sentences of the proposal would require the Agency to collaborate with all parties involved in the operation of the day care center in an effort to provide an IPMS that is pesticide free. See Union’s Response at 9.
V. Positions of the Parties
The Agency claims that it does not control the day care center or the building where the day care center is located. The Agency asserts that the building is controlled and operated by the EPA. SOP at 2. As such, the Agency argues that it cannot negotiate for the EPA. See id. at 3. The Agency asserts,
contrary to the Union, that the financial contribution it provides to the day care center does not give it any control over the decision of which pest control system the EPA determines to be appropriate for its building. SOP at 2. The Agency further claims that, even if it had such power, it would defer to the expertise of the EPA, over that of the Union, in deciding whether the use of pesticides is an appropriate eradication or prevention measure. See id. at 2-3.
With regard to the second and third sentences of the proposal, the Agency states that it has “offered to and expressed the concerns of the Union regarding pesticides” to the day care center and to the EPA, and that nothing prevents the Union from expressing its concerns as well. SOP at 2.
According to the Union, the Agency provides subsidies for the children of federal employees for tuition and also “significant amounts of money” for the day care center’s support. Union’s Response at 3-4. The Union asserts that the Agency can “stipulate that it will not pay for pesticides” and that it can refuse to pay when it receives billings for such services. Id. at 2.
As part of its clarification of the record, the Union asserts that it “does not concede” that the EPA primarily operates the day care center’s building. See id. The Union asserts that there are signs inside and outside of the building indicating that the day care center “is a joint or co-sponsored project of both [the] EPA and [the Agency].” Id. at 2. The Union also argues that the Agency’s web page indicates that the day care center is co-sponsored by the Agency and the EPA. See id. at 4.
With regard to the second and third sentences of the proposal, the Union claims that the Agency can make requests and recommendation to the EPA regarding its IPMS because the IPMS policy names the Agency’s Chief, Health and Safety Branch as one of the building’s IPMS Advisory Team members. See Union’s Response at 4 (citing Attachment 4 at 2).
V. Analysis and Conclusions
With regard to the first sentence of the proposal, the Agency only argues that it cannot negotiate over which pest management system will be used in the day care center because the Agency does not have control over the building where the day care center is located. The Agency claims that the building is operated by the EPA and that it cannot negotiate on behalf of the EPA.
Matters pertaining to day care facilities concern conditions of employment of unit employees. See, e.g., Gen. Serv. Admin., Region 10, Auburn, Wash., 47 FLRA 585, 593 (1993). An agency is obligated to bargain over an otherwise negotiable condition of employment to the extent that it has discretion with respect to that condition of employment even if that discretion is limited to making requests and recommendations to an outside party that controls the condition of employment. See, e.g., Int’l Fed. of Prof’l & Technica