This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute).^[1] This case originally concerned eight proposals related to personal space heaters; however the parties have narrowed their dispute to four proposals: Proposals 3, 4, 5, and 8.^[2] The Agency (SSA) filed a statement of position (statement), to which the Union filed a response. The Agency did not file a reply to the Union’s response. 

After several small fires caused by personal space heaters, the Agency issued a “reminder”^[3] that the use of personal space heaters was not permitted under most circumstances and announced that it would return to compliance with its policy. Contending that this reminder was actually a change in policy, the Union sought to bargain over the Agency’s space‑heater policy. The parties exchanged proposals but were unable to reach agreement even with the assistance of a third‑party mediator.

At the post‑petition conference (the conference), the Agency declined to respond to certain proposals that the Union revised during the conference.^[4] Under § 2424.23 of the Authority’s Regulations, the Authority prepared and served a record of the conference (the record) on the parties.^[5] In the Agency’s statement, the Agency objects that the record mischaracterizes its reasons for declining to respond to the revised proposals during the conference.^[6] But the Authority has not penalized the Agency for not responding to the revised proposals during the conference.^[7] To the contrary, the Agency has had the opportunity to respond to the Union’s revised proposals in its statement of position, and we have fully considered its response. Because the claimed errors have no bearing on the outcome of this proceeding, we find it unnecessary to resolve the Agency’s objection to the contents of the record.^[8] 

 

 

The parties agree that the purpose of the proposal is to establish procedures for the Agency to use when it directs an employee to remove a space heater.^[11] The parties also agree that the “permissible replacement . . . [for] the personal equipment that is removed,” referenced in Section 3, would not necessarily have to be a personal space heater.^[12] They also agree that Proposal 5 contemplates the creation of a list of approved space heaters, and that the “permissible replacement” referenced in Section 3 might be a heater from that list.^[13] Finally, the Union clarified that “HVAC” stands for “heating, ventilation, and air conditioning.”^[14]

The Agency claims that it has an Agency‑wide policy that prohibits space heaters and that the only exception to this policy is when a space heater is required as a reasonable accommodation under the Rehabilitation Act.^[15] The Agency claims that the proposal conflicts with this policy by requiring the Agency to provide, in certain circumstances, a space heater even when a space heater is not required as a reasonable accommodation.^[16] 

But a proposal is not outside the duty to bargain merely because it conflicts with an agency‑wide rule or regulation.^[17] To establish that such a conflict relieves an agency of its duty to bargain, the agency must:             (1) identify a specific agency‑wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need within the meaning of § 2424.11 of the Authority’s Regulations.^[18] Moreover, this exception does not apply where the proponent union represents a “majority of the employees . . . to whom the rule or regulation is applicable.”^[19]

Here, the Agency’s statement does not address whether the space‑heater policy rises to the level of a rule or regulation, or whether there is a “compelling need” for the policy.^[20] Further, the Union states in its response that the compelling‑need exception does not apply, because the Union represents “considerably more than one‑half of the [bargaining‑unit] eligible employees of the Agency.”^[21] The Agency’s statement does not address the share of employees represented by the Union, and, as noted above, the Agency did not submit a reply to the Union’s response.

Under § 2424.32(c)(2) of the Authority’s Regulations, the “[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.”^[22] Consistent with this regulation, the Agency has conceded that the compelling‑need exception does not apply here because the Union represents “a majority of the employees . . . to whom the [policy] is applicable.”^[23] Accordingly, the Agency’s claim that the proposal conflicts with its policy does not establish that the proposal is outside the duty to bargain. 

The Agency also claims that the proposal conflicts with a GSA regulation, specifically, 41 C.F.R. § 102‑74.190, which states, “[f]ederal agencies are prohibited from operating portable heaters, fans, and other such devices in [g]overnment‑controlled facilities unless authorized by the [f]ederal agency buildings manager.”^[24] The Agency claims that the proposal is therefore “inconsistent with [a] government[‑]wide regulation prohibiting space heaters not approved by the Federal Buildings Manager . . . , since the [building manager] at [the Agency has] banned space heaters absent a reasonable accommodation.”^[25]

                The Union acknowledges that § 102‑74.190 requires the approval of the building manager.^[26] But it responds that, because the Agency’s Office of Budget, Finance, Quality, and Management is the federal building manager for the Agency, the regulation effectively gives the Agency discretion to approve space heaters.^[27] The Union further argues that because the Agency’s discretion is not “sole and exclusive,” the Agency is obligated to negotiate over the exercise of that discretion.^[28]

Authority precedent establishes that where a statute or regulation gives an agency discretion over a matter concerning conditions of employment, the agency is required to bargain over how it will exercise its discretion unless its discretion is “sole and exclusive.”^[29] Here, the Union states that the text of the regulation does not indicate that the Agency’s discretion to approve space heaters, or to manage its facilities in general, is intended to be sole and exclusive, and it notes that the Agency has submitted nothing to indicate otherwise.^[30]

As noted above, the Authority’s Regulations provide that a failure to respond to an argument may be deemed a concession.^[31] Thus, by failing to respond to the Union’s argument that its discretion to permit space heaters is not sole and exclusive, the Agency has conceded that the Statute requires it to bargain over the exercise of that discretion. 

The parties agree that the proposal would require the creation of a procedure that an employee could invoke to request permission to use an unapproved personal heater (or other device).^[35] The Union explained that the term “building manager” has the same meaning as that term is used in GSA regulations.^[36] The parties agree that the Agency’s Office of Budget, Finance, Quality, and Management is the building manager for the Agency.^[37]

The Union explained that the “Union/Management Health and Safety Committee, or Union/Management health and safety arrangement” referred to in Section 3, would encompass both multi‑member committees and one‑on‑one collaboration.^[38] The Union also clarified that Section 4 would not apply if it would be illegal for the Agency to approve a particular heater in a particular circumstance.^[39] The Agency did not contest either of these explanations in its statement.^[40] 

Finally, the Agency argues that Section 3 would “transfer the authority to approve or disapprove requests for approval of a space heater out of the [building manager]’s purview.”^[41] However, in its response, the Union clarifies that Section 3 “does not give a Health and Safety Committee or other body the authority to act for the Building Man[a]ger, and approve or disapprove requests on its own.”^[42] Rather, the Union explains that the committee’s action would entail things such as requesting an update on the status of the request, making a recommendation to the building manager, or meeting with the building manager to discuss the request.^[43]

Where the parties disagree over the meaning of a proposal, the Authority looks first to the proposal’s wording and the union’s statement of intent.^[44] If the union’s explanation of the proposal’s meaning comports with the wording, then the Authority relies on that explanation to assess whether the proposal is within the duty to bargain.^[45] Here, Section 3 states that after thirty days, requests “will be referred to the . . . Health and Safety Committee . . . for its action.”^[46] The Union’s explanation of the proposal – that “action” does not include approving a request^[47] – is consistent with the plain wording of the proposal. Accordingly, we adopt the Union’s explanation for purposes of assessing the negotiability of the proposal.

The Agency argues that Section 4 is contrary to GSA regulations because, under 41 C.F.R. § 102‑74.190, only the building manager may approve space heaters.^[48] We agree. Section 102‑74.190 prohibits space heaters, “unless authorized by the [f]ederal agency buildings manager.”^[49] By treating all requests not acted upon within sixty days as approved, Section 4 would permit the use of heaters that were not authorized by the building manager. As such, Section 4 is contrary to § 102‑74.190.

 

 

 

The Union requests that “in the event that the Authority finds that any part of Proposal 4 is nonnegotiable . . . the Authority sever each numbered sub‑part . . . and consider the negotiability of each severed sub‑part as a separate proposal.”^[50] The Agency opposes the Union’s request for severance, claiming that the numbered subparts cannot be read without the unnumbered introductory sentences.^[51] 

As relevant here, “[s]everance means the division of a proposal . . . into separate parts having independent meaning, for the purpose of determining whether any of the separate parts is within the duty to bargain.”^[52] “In effect, severance results in the creation of separate proposals[,] . . . [and] applies when some parts of [a] proposal . . . are determined to be outside the duty to bargain.”^[53] A union “must support its [severance] request with an explanation of how the severed portion(s) of the proposal . . . may stand alone, and how such severed portion(s) would operate.”^[54] Generally, a union meets this burden, and the Authority will grant the union’s severance request, if the union explains how each severed portion may stand alone and operate independently.^[55]

                Although the Agency argues that the numbered sections of the proposal “cannot be read without” the proposal’s introductory sentences,^[56] we find that, based on the way in which the Union explains the individual, numbered sections in the record^[57] and its response,^[58] the Union is requesting that we sever the numbered sections from one another, rather than from the unnumbered introductory sentences. Moreover, the Union has explained how each of the numbered sections would operate and how the numbered sections can operate independently from one another. Accordingly, we grant the Union’s request to sever the numbered sections from one another. Further, the Agency has conceded that the proposal’s unnumbered introduction and Sections 1 and 2 are within the duty to bargain,^[59] and we have determined that Section 4 is outside the duty to bargain, so we are left with the question of whether Section 3 is within the duty to bargain. 

The Agency argues that Section 3 is contrary to 41 C.F.R. § 102‑74.190 because under the regulation only the building manager may approve space heaters.^[60] It claims that “[a]llowing a union‑management committee to authorize the use of space heaters or other appliances would directly violate this regulation.”^[61] Similarly, it argues that allowing a labor‑management committee to approve the use of space heaters interferes with its right to determine its internal security practices under § 7106(a)(1) of the Statute.^[62] Finally, as with Proposal 3, the Agency claims that Section 3 of this proposal is contrary to Agency policy.^[63] 

As discussed above, we have adopted the Union’s explanation that Section 3 does not permit the health‑and‑safety committee to approve the use of space heaters.^[64] Accordingly, we find that Section 3 is not contrary to 41 C.F.R. § 102‑74.190 or to the Agency’s right to determine its internal security practices. And, as we have explained in connection with Proposal 3, the Agency’s claim that Proposal 4, Section 3 conflicts with Agency policy does not establish that the proposal is outside the duty to bargain.^[65]

The parties agree that Section 1 would require the parties to develop and maintain a list of space heaters that are approved by the building manager, and to distribute the list annually.^[69] The Union further explains – and the Agency does not contest^[70] – that Section 2 would require the parties to develop a guide regarding the safe use of space heaters to distribute with the list provided for in Section 1.^[71]

The parties also agree that the proposal is meant to provide a list of possible product‑specification, safety, and usage suggestions and requirements.^[72] They agree that these suggestions could be included in the negotiated advice to which Proposal 5, Section 2 refers, ifthe parties agree to negotiate and distribute such advice.^[73]        

As with Proposals 3 and 4, the Agency claims that Proposal 5 and 8 conflict with the Agency policy limiting the use of space heaters.^[74] As discussed above, this claim does not establish that the proposals are outside the duty to bargain.^[75]

The Agency claims that the proposals conflict with 41 C.F.R. § 102‑74.190. It does not elaborate upon the conflict between the regulation and Proposal 5 and, with respect to Proposal 8, it asserts simply that the proposal conflicts with § 102‑74.190, because that provision “prohibits the use of items such as portable heaters . . . in government‑controlled facilities unless authorized by the [f]ederal [a]gency buildings manager.”^[76] As with Proposal 3, this argument does not establish that the proposals conflict with § 102‑74.190.^[77]

The Agency argues that the proposals interfere with the Agency’s right to determine its internal security practices under § 7106(a)(1) of the Statute.^[78] Specifically, the Agency argues that “[t]he right to determine internal security practices includes an agency’s right to determine policies used by an agency to prevent fires and to protect its employees and property from fires,” and that the Union’s proposals interfere with that right.^[79] 

An agency’s right to determine its internal security practices includes the authority to determine the policies and practices that are part of an agency’s plan to secure or safeguard its personnel, physical property, or operations against internal and external risks.^[80] Moreover, the right to determine an agency’s internal security practices includes the right to adopt policies to safeguard against fires.^[81] Where an agency shows a link or reasonable connection between its security objective and a policy or practice designed to implement that objective, a proposal that conflicts with the policy or practice affects this management right.^[82] 

Here, the Agency claims that it restricts the use of space heaters to prevent fires,^[83] and it submits evidence that space heaters have caused fires in the past.^[84] Accordingly, we find that the proposals affect the Agency’s right to determine its internal security practices under § 7106(a)(1).

The Union argues that even if Proposals 5 and 8 affect the Agency’s right to determine its internal security practices, they are nevertheless negotiable because they are appropriate arrangements under § 7106(b)(3) of the Statute.^[85] A proposal that would affect management’s rights under § 7106(a) of the Statute is negotiable if it constitutes an appropriate arrangement within the meaning of § 7106(b)(3).^[86] To determine whether a proposal constitutes an appropriate arrangement, the Authority first considers whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right.^[87] The claimed arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management’s rights.^[88]  If the Authority finds the proposal to be an arrangement, then the Authority will determine whether it is appropriate or whether it is inappropriate because it excessively interferes with management’s rights.^[89]  In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management’s rights.^[90] 

Here, the Union argues that the proposals are appropriate arrangements for employees affected by the Agency’s decision to limit the use of space heaters.^[91] It argues that its proposals will help to mitigate the discomfort, and associated reduced productivity, experienced by employees when their work areas are too cold.^[92] The Union also argues that its proposals will benefit both employees and the Agency by providing a streamlined process to permit the safe use of space heaters^[93] and that any burden on the Agency’s right to determine its internal security practices will be slight given that the Agency already allows space heaters as a reasonable accommodation.^[94] According to the Union, the proposals are inherently tailored because “only those employees who wish to use personal space heaters will derive any benefit.”^[95]

The Agency argues that “the Union’s proposals . . . would excessively interfere with the [A]gency’s right to determine its internal security.”^[96] However, the Agency does not elaborate on how either proposal would burden its right to determine its internal security practices under § 7106(a)(1).^[97] Weighing the benefits of the proposals, as claimed by the Union, against the absence of any specifically identified burdens on the Agency’s right to determine its internal security practices, we find that Proposals 5 and 8 are appropriate arrangements.^[98]

The Agency also “requests that the Authority decline to order the parties to negotiate further over this matter even if [we] find some of the new proposals are negotiable.”^[99] In support of this request, the Agency argues that ordering the parties to bargain would be inconsistent with Authority “precedent that an agency may implement at its peril.”^[100] And it claims that an order to bargain would undermine the stability that the Statute is intended to promote because the Union should have sought bargaining over space heaters during the negotiation of the parties’ 2012 collective‑bargaining agreement.^[101] 

It is unclear why the Agency argues that an agency may implement a proposed change in conditions of employment “at its peril.”^[102] The Authority has held that an agency does not commit a ULP when it implements a change in working conditions before the completion of bargaining, if a union has submitted proposals and all of the proposals are nonnegotiable.^[103] But this is not a ULP proceeding, and the Union submitted negotiable proposals. Therefore, the Agency’s argument does not raise any issues that affect any obligation it has to bargain over the Union’s proposals. Moreover, to the extent that the Agency suggests that the Union waived its right to bargain when it withdrew its ULP charge, over the Agency’s implementation of the space‑heater policy, our procedures permit a union to withdraw a ULP allegation in order to file a negotiability appeal.^[104]  

Likewise, the Agency’s argument that the Union should have sought to bargain over the space‑heater policy during term negotiations does not establish that the proposals are outside the duty to bargain. Under the Authority’s covered‑by doctrine, a party is not required to bargain over terms and conditions of employment that have already been resolved by bargaining.^[105] But, for the covered‑by doctrine to apply, the subject matter of the disputed proposals must be either “expressly contained in” the parties’ collective‑bargaining agreement, or “inseparably bound up with,” and thus “plainly an aspect of” a subject expressly covered by the agreement.^[106] Here, the Agency does not claim that the parties’ agreement expressly addresses space heaters or that the agreement contains a “zipper” clause.^[107] Rather, it claims simply that term negotiations would have been a more opportune time for the Union to raise the space‑heater policy and that ordering the parties to bargain over the Union’s proposals “would be inconsistent with the intent of Statute . . . to promote stability.”^[108] However, this argument does not establish that the proposals are nonnegotiable.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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