17:0674(98)NG - AFGE Local 12 and Labor -- 1985 FLRAdec NG
[ v17 p674 ]
17:0674(98)NG
The decision of the Authority follows:
17 FLRA No. 98
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Union
and
DEPARTMENT OF LABOR
Agency
Case No. 0-NG-776
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of six Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
1a. Vacancies under the reorganization will be limited to DIT
(Directorate of Information Technology) employees and be filled
from the top down to maximize the number of promotions in DIT.
1d. In addition to the co-op program, Management will provide
four upward mobility positions for employees in DIT.
In its Reply Brief, the Union asserts that Union Proposal 1a was
"in-artfully drafted" and that it is merely intended to limit
advertising of unit vacancies to the bargaining unit. Therefore, in the
Union's view, the proposal is negotiable because it does not require
that vacancies be filled by unit employees. However, the Authority has
consistently held that it will not base a negotiability determination on
a union's statement of intent which is inconsistent with the express
language of the disputed proposal. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). In
this connection, the proposal makes no reference to vacancy
announcements. Moreover, in its negotiability determination and in its
Statement of Position, the Agency based its position on its
understanding that the proposal required the filling of bargaining unit
vacancies with bargaining unit employees. That interpretation was not
"corrected" by the Union. The Agency's interpretation is therefore
deemed consistent with the language of the proposal and is adopted for
the purpose of this decision. Hence, Union Proposal 1a is to the same
effect as those proposals the Authority has found nonnegotiable which
sought to limit the selections for bargaining unit vacancies to
bargaining unit employees. The Authority has consistently held with
respect to such proposals that they are inconsistent with management's
right, pursuant to section 7106(a)(2)(C) of the Statute, to select from
among properly ranked and certified candidates or from any other
appropriate source. See, e.g., National Federation of Federal Employees
Local 1332 and Headquarters, U.S. Army Materiel Development and
Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981) (Union
Proposals III and IV). Consequently, Union Proposal 1a is also outside
the duty to bargain.
Union Proposal 1d, in requiring that a specific number of positions
be set aside as "upward mobility positions," is to the same effect as
the proposal which was before the Authority in National Treasury
Employees Union and Internal Revenue Service, 2 FLRA 281 (1979). The
Authority held that the portion of the disputed proposal requiring that
a specified percentage of agency vacancies be filled as upward mobility
positions was inconsistent with management's rights, pursuant to section
7106(a)(2)(C) of the Statute, to select candidates and to fill
positions. Hence, based on Internal Revenue Service, and the reasons
stated therein, Union Proposal 1d is outside the duty to bargain.
Union Proposal 2
Performance Appraisal. The reorganization will not be
implemented until all employees have developed their performance
standards based on their P.D. (position description) and signed
them as accepted. /2/
The Union, in its Reply Brief, asserts that Proposal 2 is not
intended "to alter the contractual process for establishing
(performance) standards" prevailing prior to the bargaining unit's
reorganization and relocation which occasioned the instant negotiations.
However, based on the record, it appears that the parties' subsisting
negotiated agreement provides for consultation between supervisor and
employee concerning revised performance standards and permits an
employee 10 working days to examine and consider the revised standards.
The existing agreement does not require employee development of the
standards nor employee acceptance of them as a condition to their
implementation, as does the language of disputed Proposal 2. /3/ On its
face then, and contrary to the Union's statement of intent, Union
Proposal 2 is to the same effect as Union Proposal 1 in National
Association of Government Employees, Local R14-89 and Headquarters, U.S.
Army Air Defense Center and Fort Bliss, Texas, 9 FLRA 1033 (1982). The
Authority found that proposal, which would have conditioned the
abolishing of positions and redistributing of duties to other employees
upon the approval by the personnel receiving the new work of revised
critical elements and performance standards, to be inconsistent with
management's rights, pursuant to section 7106(a)(2)(A) and (B) of the
Statute, to direct employees and to assign work. Consequently, based on
U.S. Army Air Defense Center and Fort Bliss, and the reasons and cases
cited therein, Union Proposal 2, herein, is outside the duty to bargain.
Union Proposal 3
QUALITY CIRCLES. Management and the Union will establish a
joint study committee to explore the feasibility of Quality
Circles in the DIT program, to facilitate the introduction of
"modern systems."
The Union asserts that its Proposal 3 responds to management's
announced plan to introduce new technology, or "modern systems" into the
bargaining unit. Further, the Union states:
The proposal is intended to have the parties establish a
committee to explore the feasibility of quality circles in (the
bargaining unit). The proposal does not require that the agency
negotiate at all, only that the agency discuss the possibility of
quality circles with the union through an ad hoc committee
structure. /4/ (Footnote added.)
Thus, the Union characterizes this proposal as a procedure, within the
meaning of section 7106(b)(2), to be followed by management in
exercising its reserved authority under the Statute.
In agreement with the Union, and contrary to the Agency's position,
the Authority finds that the proposal would not directly concern the
technology, methods, and means of performing work, matters which may
only be negotiated at management's election pursuant to section
7106(b)(1) of the Statute. That is, it does not appear on its face, nor
does the Union's explanation compel the conclusion that the proposal
would in any way impede the introduction by management of "modern
systems." Rather, this proposal would only obligate the Agency to
discuss with the Union the possibility of using quality circles to serve
as a forum for evaluating employee concerns, suggestions, etc.,
concerning the introduction of "modern systems." In this regard, the
disputed proposal is to the same effect as the Union Proposal before the
Authority in American Federation of Government Employees, AFL-CIO, Local
2761 and U.S. Department of the Army, U.S. Army Adjutant General
Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984) which sought
establishment of a joint labor-management committee to serve as a forum
for evaluating employee training needs and for formulating programs to
meet those needs, without obligating the agency to bargain on the
specific content of training. The Authority concluded that the proposal
was not inconsistent with any substantive agency rights, but, rather,
constituted a negotiable procedure to be followed by management in
exercising its substantive rights, within the meaning of section
7106(b)(2) of the Statute. Thus, based on U.S. Army Adjutant General
Publication Center, and the reasons and cases cited therein, Union
Proposal 3, herein, which also constitutes a procedure to be followed by
management in exercising its rights, is within the Agency's obligation
to bargain. /5/
Union Proposal 4
COMPETITIVE LEVELS. Competitive levels will be structured to
more clearly support the regulations, including (5 CFR) 351.403
"all positions in a competitive area and in the same grade or
occupational level which are sufficiently alike in qualification
requirements, duties, responsibilities, pay schedules and working
conditions so that an agency readily may assign the incumbent of
any one position to any of the other positions without . . .
unduly interrupting the work program."
Management analyst and Computer Assistant (positions) will
remain in the same competitive level they were in under the old
organization.
The Agency objects to the first paragraph of Union Proposal 4 on the
basis that "the subject matter is already covered under governing
regulations(.)" Furthermore, the Agency contends, "If (the Union)
disagrees with the administration of the regulations by (the Agency) it
can grieve, but it cannot renegotiate these regulations." /6/ It does
not appear that the Agency's use of the term "renegotiate" is intended
to imply that the first paragraph of the proposal is inconsistent with
the regulations themselves. Rather, it appears that the Agency opposes
incorporation of the regulatory requirements in the agreement. Indeed,
comparison of this portion of the proposal, especially the part enclosed
by quotation marks, with the cited Office of Personnel Management (OPM)
regulations, as printed in the latest edition of the CFR (1984 Supp.),
reveals that, while the part of the proposal in quotes is not quite an
exact reiteration of the regulations, the minor variations in the
proposal do not render it inconsistent with the regulations. /7/ In
these circumstances, the Agency has raised no viable objection to the
first paragraph. Additionally, it is noted that the subject matter of
the first paragraph is not expressly excluded by section 7121 of the
Statute from coverage of a negotiated grievance procedure and is
therefore a matter appropriate for collective bargaining. See, e.g.,
National Treasury Employees Union and Internal Revenue Service, 3 FLRA
693 (1980) (Union Proposals II and III); and Association of Civilian
Technicians, New York State Council and State of New York, Division of
Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Union
Proposal 1). /8/
The second paragraph of Union Proposal 4 would, in effect, require
employees in the listed occupations to remain in the same competitive
level for the life of the parties' agreement. The proposed requirement
reflects the Union's belief that "the two types of positions belong in
the same competitive level." /9/ In this regard, the Authority notes
that a position's competitive level is determined by, inter alia,
duties, responsibilities and working conditions and that to be in the
same competitive level, positions must be "sufficiently alike" so that
"an agency readily may assign the incumbent of any one position to any
of the other positions without changing the terms of his appointment or
unduly interrupting the work program." See n.7. Thus, the proposal's
second paragraph, read in conjunction with the OPM regulations defining
"competitive levels" imposes a limitation on the Agency's authority,
pursuant to section 7106(a)(2)(B) of the Statute, to assign work. That
is, the Agency would either be constrained to maintain duties,
responsibilities and working conditions for these occupations as they
existed under the old organization or to effect only such changes in
these factors as would allow assignment, in conformity with the
regulations, of the two occupations to the same competitive level. In
limiting management's discretion in making work assignments to employees
in the listed occupations, the second paragraph of Union Proposal 4 is
to the same effect as the proposal before the Authority in International
Association of Fire Fighters, Local F-109, AFL-CIO and Department of the
Army, Headquarters, Carlisle Barracks, Pennsylvania, 8 FLRA 35 (1982)
which required, inter alia, that work assignments be consistent with the
position classification standards of the particular occupation.
Consequently, based on Carlisle Barracks, and the reasons and cases
cited therein, the second paragraph of Union Proposal 4 is likewise
inconsistent with management's right, pursuant to section 7106(a)(2)(B),
to assign work and is, therefore, outside the duty to bargain.
Union Proposal 5
TRAINING. The Union and Management will establish a joint
training committee to facilitate training for the implementation
of the transition to "modern systems."
The Agency contends that it is not obligated to bargain on Union
Proposal 5 because, based upon provisions in the parties' current
negotiated agreement, "the Union has made a clear and unequivocal waiver
to negotiate further on the subject of training during mid-term as
proposed." /10/ The Agency also asserts that the proposal concerns the
technology, methods and means of performing work and, therefore,
pursuant to section 7106(b)(1), is negotiable only at the Agency's
election.
As to the Agency's first contention, in accordance with the
Authority's decision in American Federation of Government Employees,
AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th
Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA
302 (1984), the Agency's position concerning waiver does not provide a
basis for dismissing the petition as it relates to Union Proposal 5.
Contrary to the Agency's second contention, the Authority finds that
the proposal does not directly concern the technology, methods and means
of performing work. In this regard, there is nothing in either the
parties' agreement, or the language of the proposal itself, which would
require the conclusion that the committee proposed to be established
would function in anything other than a consultative capacity to suggest
methods for meeting training needs. Indeed, the provisions of the
parties' present agreement, included in the record and cited by both
parties with respect to the waiver issue, lends further support to this
conclusion. Consequently, for the reasons set forth concerning Union
Proposal 3, above, and again based upon U.S. Army Adjutant General
Publication Center, 14 FLRA 438 (1984), Union Proposal 5, which only
concerns a procedure by which the Agency will exercise its management
rights, is within the duty to bargain. /11/
Union Proposal 6
d. Private offices will be on the inside core near the main
entrance. Employee work areas will be on the outside of the room
where there is better light and less internal office traffic.
f. A second entrance at N1321 will be established so employees
may enter and leave without creating traffic through the whole
work area and have access to the nearest drinking fountain and
provide a second employee escape from the hallway.
g. Window areas will not be blocked by private offices and
high partitions.
h. Doors will not be alarmed. As in GAO 2832, they will be
set so they cannot be opened from the hallway.
The Agency asserts that it is under no obligation to bargain over
Union Proposal 6 sections d and g because the offices which are the
subject of these portions of the proposal are occupied by nonbargaining
unit personnel. In response, the Union contends, with regard to section
6d that the second sentence of the paragraph "refers only to the space
to be used by bargaining unit employees." /12/ The Union does
acknowledge, however, that at least some of the private offices referred
to in Proposal 6 are occupied by nonbargaining unit employees. Thus,
section 6d, by fixing the location within the building of space to be
occupied by unit employees, inevitably has an impact on the location of
nonunit personnel. That is, locating unit space on the outside of the
room would require that private offices, occupied by employees outside
the bargaining unit, be sited elsewhere. It is well established that
the duty to bargain does not extend to matters concerning positions and
employees outside the bargaining unit. See, e.g., International
Federation of Professional and Technical Engineers, AFL-CIO, NASA
Headquarters Professional Association and National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982).
Insofar as section 6g, which also affects the location of private
offices by prohibiting them from being located next to windows, would
also directly determine conditions of employment of nonunit employees,
it concerns matters beyond the representation rights of the Union and
likewise is not within the Agency's obligation to bargain.
The Agency alleges that sections f and h of Union Proposal 6 are
nonnegotiable because they interfere with its reserved right, pursuant
to section 7106(a)(1) of the Statute, to determine its internal security
practices. Alarming of doors and limiting access to the work area
clearly are measures directly related to the internal security of the
Agency. In this regard, the Authority observed, in National Association
of Government Employees, SEIU, AFL-CIO and Department of the Air Force,
Scott Air Force Base, Illinois, 16 FLRA No. 57 (1984), that " . . . an
agency's right to determine its internal security practices includes the
right to determine policies and actions which are part of its plan to
secure or safeguard its physical property against internal or external
risks." Since sections f and h on their face concern what methods
management must, or must not utilize with regard to limiting access into
or out of its work area, they are inconsistent with the authority,
pursuant to section 7106(a)(1), to determine internal security practices
and are outside the duty to bargain. /13/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review, as it relates
to Union Proposals 1, 2, the second paragraph of Union Proposal 4 and
Union Proposal 6 be, and it hereby is, dismissed. IT IS FURTHER ORDERED
that the Agency shall upon request (or as otherwise agreed to by the
parties) bargain concerning Union Proposal 3, the first paragraph of
Union Proposal 4 and Union Proposal 5. Issued, Washington, D.C., April
23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its Reply Brief, the Union withdrew several additional
proposals and portions of others.
/2/ As originally submitted to the Authority, Union Proposal 2
referred to "performance appraisal based on their PD." However, the
Agency, in its Statement of Position, construed this phrase as referring
to "performance standards," and this construction was ; subsequently
affirmed by the Union.
/3/ As noted previously, the Authority will not base a negotiability
determination on an explanation clearly at odds with the express
language of a proposal. Office of the Adjutant General, Des Moines,
Iowa, 5 FLRA 617 (1981).
/4/ Union Reply Brief at 5.
/5/ In finding Union Proposal 3 within the duty to bargain, the
Authority makes no judgment as to its merits. Moreover, to the extent
that there are factual issues in dispute between the parties concerning
the duty to bargain on this proposal, in the circumstances of this case,
these issues may be raised in other appropriate proceedings. American
Federation of Government Employees, AFL-CIO, Local 2736 and Department
of the Air Force, Headquarters, 379th Combat Support Group (SAC),
Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).
/6/ Agency Statement of Position at 6.
/7/ The pertinent part of 5 CFR 351.403 provides:
(a) Each agency shall establish competitive levels consisting
of all positions in a competitive area in the same grade or
occupational level which are sufficiently alike in qualification
requirements, duties, responsibilities, pay schedules, and working
conditions, so that an agency readily may assign the incumbent of
any one position to any of the other positions without changing
the terms of his appointment or unduly interrupting the work
program.
/8/ In finding the first paragraph of Union Proposal 4 within the
duty to bargain, the Authority makes no judgment as to its merits.
/9/ Union Reply Brief at 7.
/10/ Agency Statement of Position at 7.
/11/ In finding Union Proposal 5 to be within the duty to bargain,
the Authority makes no judgment as to its merits. Again, as noted in
n.5, supra, any subsisting factual issues concerning the obligation to
bargain should be resolved in other appropriate proceedings. Wurtsmith
Air Force Base, 14 FLRA 302 (1984).
/12/ Union Reply Brief at 8.
/13/ Cf. American Federation of Government Employees, AFL-CIO, Local
1760 and Department of Health, Education and Welfare, Social Security
Administration, Northeastern Program Service Center, Flushing, New York,
8 FLRA 202 (1982) (proposal found negotiable where, on its face, it did
not relate to internal security matters and the agency failed to
demonstrate such relationship).