[ v16 p369 ]
16:0369(60)NG
The decision of the Authority follows:
16 FLRA No. 60
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1979
Union
and
U.S. FOREST SERVICE,
SAN DIMAS EQUIPMENT
DEVELOPMENT CENTER
Agency
Case No. O-NG-533
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Federal Labor
Relations Authority pursuant to section 7105(a)(2)(D) and (E) of the
Federal Service Labor-Management Relations Statute (the Statute) and
raises issues as to the negotiability of four provisions of a local
supplemental agreement, disapproved by the Agency pursuant to Article
9.7(b) of the parties' Master Agreement. /1/ Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determinations.
Provision 1
ARTICLE 30F
MISCELLANEOUS
2. Information Distribution: Management agrees to route all
memorandums, directives, newsletters or other documents received
by them from other Government agencies, the Washington Office of
the Forest Service, the Regional Office, the Office of Personnel
Management, etc., that contain or could contain information which
does or may effect career development, employment conditions,
employment environment or employee benefits to the President of
the Professional Association or his delegated representative.
Management further agrees to inform the President of the
Professional Association where the aforementioned information and
documents are kept (filed) at the Equipment Development Center and
grants access to these documents by the President of the
Professional Association or his delegated representative when
access is requested. (Footnote deleted.)
Provision 1 of the local parties' agreement essentially requires
management to transmit to the Union "all" documents which it receives
that contain or "could" contain information that relates or "may" relate
to the conditions of employment of unit employees and to provide Union
representatives access to the place where those documents are kept.
Thus, under the express terms of the provision, the only documents which
management would be entitled to withhold from the Union are those which
could not possibly contain any information that might relate to unit
employees' conditions of employment. The Agency contends that the broad
wording of the provision would require management to disclose
information which under law, i.e., section 7114(b)(4)(C) of the Statute,
it is not obligated to give to the Union. /2/
Section 7114(b)(4) of the Statute generally provides that an agency,
pursuant to its obligation to negotiate in good faith under section
7114(a), must furnish to a union data which is necessary to enable the
union to carry out its representational responsibilities to the extent
not prohibited by law. See, e.g., American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and Department of Justice, Immigration and Naturalization
Service, 8 FLRA 347 (1982) (Union Proposal 9) reversed as to other
matters sub nom. Department of Justice, Immigration and Naturalization
Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), and U.S. Customs Service
Region VII, Los Angeles, California and National Treasury Employees
Union, 10 FLRA 251 (1982). However, subsection (C) of that section
exempts from the agency's obligation data which constitutes "guidance,
advice, counsel or training provided for management officials or
supervisors, relating to collective bargaining." /3/ Clearly, "guidance"
and "advice" of this nature "could contain" information that "may"
relate to the conditions of employment of unit employees within the
meaning of Provision 1. The Union's claim that Provision 1 does not
encompass such material is contrary to the broad language of the
provision and is not persuasive. As written, the provision extends to
information which management has no statutory obligation to provide to
the Union, i.e., which is exempt from disclosure. In thus requiring
management to furnish information which, under section 7114(b)(4)(C) of
the Statute, is exempt from disclosure, Provision 1 is inconsistent with
law /4/ and outside the duty to bargain. /5/ Cf. National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 6 FLRA 508, 509-10 (1981) (proposal which does not incorporate
statutory limitations on reimbursement for training expenses is outside
the duty to bargain).
Provision 2
ARTICLE 30G
MISCELLANEOUS
Technical Dissents
Dissents to technical decisions, which may be submitted from
time to time by Center employees, will be received and stored in
the appropriate Center files for 20 years by Local management and
made available to the employee. Inclusion in the dissent file
shall be deemed constructive notice to the Director and to the
employee's supervisor.
The record indicates that the mission of the particular installation
involved in this case is "to create new or substantially improved
equipment, systems, materials, processes, techniques, and procedures
that will be suitable to meet the objectives of advanced (f)orest
management utilization . . . ." In essence, therefore, the work of the
installation is technical research and testing and the work product
consists of reports thereon which are submitted to higher levels of
management within the Agency. Thus, in this context, Provision 2 would
require the Agency to accept technical dissents, presumably by employees
who worked on the projects involved, to the reports which are submitted
to management and to retain those dissents on file with the report.
The Agency contends that the policy regarding submission and
retention of dissents to technical reports concern the "methods" by
which it performs its work within the meaning of section 7106(b)(1).
/6/ As already indicated, a significant aspect of the work of the
installation involves employees reporting to management officials on the
results of their research and testing projects, including any
conclusions and recommendations. Thus, it is clear that the policy as
to the submission and retention of technical dissents is part of the
Agency's decision to adopt a particular way of reporting. Therefore,
Provision 2 directly concerns the manner in which the Agency performs
the function of preparing and communicating technical information. The
decision to allow individual employees who have worked on a given
project to submit separate dissenting views to the final report
concerning that project represents only one of a number of ways in which
the Agency could take into account differing opinions in compiling its
technical reports. It is concluded, therefore, that requiring the
Agency to provide for technical dissents as set forth in Provision 2
concerns the "methods" by which it performs work and, as such, is a
matter about which it can elect to negotiate under section 7106(b)(1) of
the Statute. See National Treasury Employees Union and Internal Revenue
Service, 6 FLRA 522 (1981) (Union Proposals IV-V); National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 7 FLRA 235 (1981) (Union Proposals 1-5). /7/
Finally, in the circumstances of this case, a question arises as to
whether the Agency has elected to negotiate by virtue of the apparent
agreement on the provision by the parties at the local level. In this
regard, the record indicates that the local agreement is a supplement to
a controlling agreement at a higher level within the Agency, which
controlling agreement provides that local supplements are subject to the
approval of the parties at the level of exclusive recognition. /8/
Thus, under the terms of the controlling agreement, the local agreement
would not be final and binding until approved at the level of exclusive
recognition. The Agency, therefore, having disapproved Provision 2 here
in dispute pursuant to the controlling agreement, has not irrevocably
elected to bargain on that provision. Consequently, Provision 2 is
outside the duty to bargain. See American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and Department of Justice, Immigration and Naturalization
Service, 8 FLRA 347 (1982) (Union Proposal 15).
Provision 3
ARTICLE 30I
MISCELLANEOUS
Authorship
Management recognizes that the individual professional
employees at the Equipment Development Center in San Dimas are
entitled to professional recognition for the professional work
which they accomplish. For this reason, Management agrees: (a)
That the Project Leader, or the Engineer and/or Forester who does
the majority of the technical work on any project upon which is
reported, shall be entitled to be the first author of that report;
(b) that all earned academic titles, regardless of the field, as
well as all professional registrations (i.e., professional
engineer, registered land surveyor, professional forester, etc.)
may be used at the employee's option on all official documents and
correspondence.
Provision 3 would essentially require the Agency to adopt a
particular format for its technical reports, i.e., one which involved
the designation of responsibility or authorship in a particular way. As
indicated in consideration of Provision 2 above, the work of the local
installation here involved is technical research and the preparation of
reports thereon. A provision which directly concerns the way or manner
in which work is to be done involves the methods and means of performing
such work within the meaning of section 7106(b-(1). In this regard, the
determination of the format in which reports will be prepared, i.e., for
example, whether authorship will be designated and, if so, the form that
it will take, directly concerns the way or manner in which the
preparation of reports will be done. Thus, Provision 3 concerns the
methods by which the Agency performs its function of technical
reporting, a matter about which the Agency may elect, but is not
obligated, to negotiate under section 7106(b)(1). Further, as to
whether the Agency has, in the circumstances of this case, elected to
negotiate on this matter, for the reasons set forth in consideration of
Provision 2, the Agency has not so elected. Therefore, Provision 3 is
outside the duty to bargain. /9/
Provision 4
Article 30B
Miscellaneous
2. If lodging cannot be located which has ready and close
access (walking distance not to exceed 1/4 mile) to reasonably
priced and wholesome food facilities, management shall authorize
use of official vehicles to transport the traveler to and from a
restaurant of the traveler's choice. The traveler shall also be
authorized, should an official vehicle not be available,
reimbursement for personal vehicle mileage, care fare, cab fare,
or other transportation expenses to travel to and from the
traveler's place of lodging and a location of the traveler's
choice for dining.
The Agency contends, without controversion, that there is no duty to
bargain at the local level on the subject matter of Provision 4 because
Article 9.7.A of the parties' Master Agreement limits supplemental
agreements to local working conditions and policies within the authority
of the local manager. /10/ Specifically, the Agency contends that the
subject matter of Provision 4 is not within the authority of the local
manager to change because it is prescribed by a higher level regulation.
/11/ The Union does not dispute the Agency's contention to the effect
that, under the parties' Master Agreement, policies prescribed by higher
level regulation are not subject to negotiation at the local level. It
appears to argue only that Provision 4 would not change those policies
and, thus, in effect that the Master Agreement's limitation on the scope
of local negotiations is not applicable.
Provision 4, on its face, would authorize the use of official
vehicles, or reimbursement, for travel to and from restaurants "of the
traveler's choice," under the circumstances where "reasonably priced and
wholesome food facilities" are not available within walking distance of
one-quarter mile. The higher level regulation relied on by the Agency
restricts the use of official vehicles, or reimbursement, to travel to
and from "the nearest available facility" providing "suitable meals."
Thus, negotiation of Provision 4 would require the local manager to
change the policy established in the higher level regulation in that it
would authorize travel beyond what is permitted under the regulation, to
restaurants of the traveler's choice, rather than to the nearest
available facility. Therefore, contrary to the Union, Provision 4 is
inconsistent with the regulation and the limitation on the obligation to
bargain at the local level imposed by Article 9.7.A of the Master
Agreement is applicable.
Hence, since there is no duty to bargain between the parties at the
local level under the Master Agreement, issues as to the negotiability
of Provision 4 under the Statute are not appropriate for resolution by
the Authority. The Authority therefore concludes that the negotiability
issue raised as to Provision 4 in the instant appeal is moot. See
National Association of Agriculture Employees, Branch 11 and Department
of Agriculture, 14 FLRA No. 100 (1984).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Provisions 1-4 be, and it hereby is, dismissed.
Issued, Washington, D.C., October 31, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(c)(4) of the Statute provides as follows:
Sec. 7114. Representation rights and duties
* * * *
(c)(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
/2/ Section 7114(b)(4) of the Statute provides as follows:
Sec. 7114. Representation rights and duties
* * * *
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(4) in the case of an agency, to furnish to the exclusive
representative involve, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonable available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
/3/ While the Authority has not construed the scope of this
exemption, it has been judicially interpreted to refer to the Office of
Personnel Management's (OPM) advice on negotiating strategies and
tactics, guidance on evaluating union proposals, and advice on
negotiating strategy and tactics in defense of agency regulations under
the compelling need requirements of the Statute. National Treasury
Employees Union, et al. v. Office of Personnel Management, No. 79-0695
(D.D.C. July 9, 1979). (This case arose under the Freedom of
Information Act (FOIA), 5 U.S.C. 552, but involved interpretation of
section 7114(b)(4)(C) of the Statute pursuant to that provision of the
FOIA, 5 U.S.C. 552(b)(3), which exempts from disclosure material which
is specifically exempted by statute other than the FOIA.) See also
National Treasury Employees Union, et al. v. U.S. Customs Service, et
al., No. 79-1208 (D.D.C. Feb. 18, 1982).
/4/ Section 7117(a)(1) of the Statute provides as follows:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/5/ Due to the result herein, it is unnecessary to consider the
Agency's additional allegation that Provision 1 is inconsistent with the
Privacy Act.
/6/ Section 7106(b)(1) provides, in relevant part, as follows:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the technology,
methods, and means of performing work(.)
/7/ Due to the result herein, it is unnecessary to consider the
Agency's additional allegation as to the nonnegotiability of Provision
2.
/8/ According to the record, Article 9.7(b) of the controlling
agreement reserves the right of the parties at the level of exclusive
recognition to approve local supplemental agreements. Union Petition
for Review at 1. Agency Statement of Position at 1.
/9/ With regard to the Agency's additional contention as to section
7106(a)(2)(B), the designation of primary authorship does not concern an
assignment of work. It is, at most, an acknowledgement of the
performance of work already assigned.
/10/ Article 9.7, Local Agreements, of the parties' Master Agreement
provides:
A. Local agreements subordinate to the master labor agreement
may be negotiated between the local parties. The purpose of a
local agreement shall be to cover local working conditions and
policies within the authority of the local manager.
/11/ The Agency cites Forest Service Manual (FSM) 6543.03, item 16.