[ v61 p209 ]
61 FLRA No. 40
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)
and
UNITED STATES
DEPARTMENT OF LABOR
(Agency)
0-NG-2771
_____
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
August 31, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
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) and concerns the negotiability of 10 proposals. The Agency filed a statement of position, to which the Union filed a response. The Agency also filed a reply to the Union's response.
For the reasons set forth below, we find that Proposals 1-3, 5, 8, and 10 are outside the duty to bargain and that Proposals 4, 6, 7, and 9 are within the duty to bargain.
II. Proposal 1
Article 9, Section 4b Employee Wellness
The parties agree that the management of this Fitness Center shall be undertaken by a governing board consisting of dues paying members of the organization. Each party shall designate one (1) representative to serve on this governing board.
A. Positions of the Parties
1. Agency
The Agency interprets the proposal as requiring that: (1) the Fitness Center be managed by a governing board made up of dues-paying members of the organization; and (2) the Union and Agency designate one representative to serve on the board. The Agency argues that: (1) the proposal does not concern the conditions of employment of unit employees; and (2) it is management's decision as to who manages its facilities.
Specifically, the Agency maintains that, "[a]lthough a fitness facility may be a benefit to morale or the physical and mental well-being of employees," "there is not a direct relationship between such proposals and working conditions." Statement of Position at 3. According to the Agency, at best, the proposal is a permissive subject of bargaining and the Agency has elected not to bargain over it.
As to the management of the Fitness Center, the Agency asserts that it is a "management function" and that the Agency "may choose to have the fitness center managed and run by its own employees or it may choose to contract out this function." Id. The Agency contends that a proposal that purports to determine who will manage the facility violates its rights under § 7106(a)(2)(B) of the Statute.
2. Union
The Union states that the proposal preserves the status quo with respect to the management of the Fitness Center. In particular, according to the Union, a governing board made up of dues paying members of the Fitness Center currently operates the facility and each party has designated one representative to serve on the board. The Union further explained that the Union- and Agency-designated representatives on the board did not need to be dues-paying members of the Fitness Center.
B. Meaning of the Proposal
By its terms, and as explained by the Union, Proposal 1 provides that the Agency's Fitness Center will be managed by a governing board made up of dues paying members of the Center, with the exception that the Union and the Agency will each designate one representative to serve on that board, neither of whom need to be members of the Center. Record of Post-Petition Conference at 2. The Agency does not dispute the Union's explanation of the proposal. Because the Union's explanation is consistent with the plain meaning of the proposal, we adopt it for purposes of resolving the [ v61 p210 ] negotiability of the proposal. See, e.g., ACT, Evergreen and Rainier Chapters, 57 FLRA 475, 477 (2001) (ACT). Thus, Proposal 1 would require that, for the life of the contract, the Fitness Center would be governed by a board made up of dues-paying members and that board would include one representative designated by the Agency and one designated by the Union, neither of whom need be members of the Fitness Center.
C. Analysis and Conclusions
1. Conditions of Employment
In AFGE, Local 12, 60 FLRA 533 (2004) (Member Armendariz concurring) (Local 12), which also involved the parties to this case, the Authority determined that a proposal requiring the Agency to maintain a fitness facility, and specifying the hours of operation, concerned the conditions of employment of unit employees. Id. at 533-35. Based upon: (1) the Agency's own acknowledgment of the linkage between employee fitness and job performance; (2) provisions in the existing collective bargaining agreement recognizing the relationship between fitness programs and productivity; and (3) the Agency's long-standing practice of providing a fitness facility, the Authority concluded that a link existed between the use of the fitness facility and the employment relationship. Accordingly, consistent with the test set forth in Antilles Consol. Educ. Ass'n, 22 FLRA 235 (1986) (Antilles), the Authority concluded that the proposal concerned unit employees' conditions of employment.
Given that the same parties are involved in this case, and in the absence of any evidence that the fitness facility involved in Local 12 is not the same facility involved in this case, the Agency's conditions of employment argument as to Proposal 1 is unavailing.
Accordingly, we reject the Agency's claim that the proposal does not concern the conditions of employment of bargaining unit employees.
2. Management's Rights
The Agency claims that it has the right to "choose to have the fitness center managed and run by its own employees or it may choose to contract out this function." Statement of Position at 2. Whether construed as a claim that the proposal affects the right to assign work or the right to contract out, we find that the proposal is outside the duty to bargain.
Turning first to the right to contract out, the Authority has held that proposals that preclude an agency from contracting out one of its functions for a specified period affect management's right to contract out under § 7106(a)(2)(B) of the Statute. See, e.g., IFPTE, Local 3, 51 FLRA 451, 456-57 (1995). The Union does not dispute the Agency's claim that the proposal would prevent the Agency from contracting out the running of the Fitness Center. We find that, as the proposal would prevent the Agency from making this determination, the proposal affects management's right to contract out.
As to the right to assign work, the Authority has consistently held that the right to assign work under § 7106(a)(2)(B) includes the right to assign particular duties, including duties which are unrelated or incidental to those of an employee's assigned position. See, e.g., Nat'l Assoc. of Agriculture Employees, 48 FLRA 599, 605 (1993) (NAAE) (citing AFGE, Local 2612, 46 FLRA 578, 580 (1992); NFFE, Local 1452, 43 FLRA 54, 59 (1991)). In this case, insofar as the Agency decides not to contract out the running of the Fitness Center, the proposal would require the Agency to assign to employees the task of operating the center. As such, the proposal affects the right to assign work. See, e.g., AFGE, Local 85, 30 FLRA 400, 409 (1987); AFGE, AFL-CIO, Local 2786, 20 FLRA 193, 197 (1985). See also SEIU, Local 200-B, 44 FLRA 821, 834 (1992).
As the Union does not claim that the proposal constitutes either a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3) of the Statute, it is nonnegotiable. [n2] See NAAE, 48 FLRA at 605.
Accordingly, we find that Proposal 1 is outside the duty to bargain.
III. Proposal 2
Article 16, Section 1 Merit Staffing
For any vacancy in a bargaining unit position, candidates who are bargaining unit employees shall receive first consideration. [ v61 p211 ]
A. Positions of the Parties
1. Agency
The Agency contends that, based on the "plain meaning" of Proposal 2, it would "preclude management from rating, ranking and/or considering other candidates until after a preliminary placement process for currently employed bargaining unit employees has been completed." Statement of Position at 5.
The Agency contends that, construed in that manner, Proposal 2 would limit its ability to consider best-qualified candidates from outside the unit. By thus limiting management's authority, the Agency maintains, the proposal is inconsistent with merit principles and constitutes a prohibited personnel practice. The Agency also asserts that the proposal violates management's right to select candidates from any appropriate source under § 7106(a)(2)(C) of the Statute, citing AFGE, Local 2429, 38 FLRA 1469 (1991), NAGE, Local R5-165, 35 FLRA 886 (1990), and Dep't of the Treasury, BATF v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (BATF).
Further, the Agency maintains that, because the proposal violates 5 C.F.R. § 335.103(b)(1), (2) and (4) and thereby violates the merit principle stated in 5 U.S.C. § 2301(b)(1), it constitutes a prohibited personnel practice under 5 U.S.C. § 2302(b)(12).
Finally, the Agency argues that, because the proposal would grant a preference to unit employees, it constitutes a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(6).
2. Union
According to the Union, under Proposal 2, when a unit position is to be filled through merit staffing, bargaining unit candidates must be considered before non-bargaining unit candidates. The Union defines the term "consideration" as "whatever management does" in the selection process, "it does it for bargaining unit employee candidates first, then for candidates outside the unit." Record of Post-Petition Conference at 2. As an example of its intent, the Union states that review of bargaining unit employees' resumes and SF 171s must take place before such review is done for nonunit candidates. The Union states that the proposal would not require management to select a unit candidate.
B. Meaning of the Proposal
The proposal states simply that bargaining unit employees will receive first consideration in filling bargaining unit vacancies. The Union explains that, other than a selection, the Agency would be required to perform any actions in the selection process with regard to bargaining unit candidates before taking those same actions for nonunit candidates. As the Union further explains Proposal 2, it appears that the proposal would not prevent the Agency from concurrently soliciting unit and nonunit employees. Rather, the proposal would take effect after the Agency has created a pool of unit and nonunit candidates. Petition for Review at 12 (unit candidates must be considered before nonunit candidates). As this explanation is consistent with the wording of the proposal, we adopt it for purposes of resolving the negotiability of this proposal. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996).
C. Analysis and Conclusions
In Dep't of the Treasury, Bur. of Alcohol, Tobacco, and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) (BATF), the court found that a proposal requiring the agency to rank and consider current employees for promotion before soliciting or ranking outside candidates was outside the agency's duty to bargain. The court concluded that by providing that "management may not consider or even solicit" outside applicants until it had finished rating, ranking and considering internal candidates, the proposal "would create pressure to promote a reasonably competent agency employee rather than leave a position unfilled during the time that it would take to initiate and complete a late-starting search for a more qualified outside candidate." Id. at 822. The court found this result inconsistent with management's right to select under § 7106(a)(2)(C) of the Statute.
Subsequently, the Authority held that proposals that allow management to concurrently solicit unit and nonunit employees, but "preclude management from rating and ranking nonunit candidates until after a preliminary placement process for currently employed bargaining unit employees has been completed[,]" also affect management's right to select under § 7106(a)(2)(C). NTEU, 43 FLRA 1279, 1287 (1992) (NTEU) (citing AFGE, Local 2429, 38 FLRA 1469, 1476-77 (1991) (Local 2429)).
As noted above, the Union explains that, under the proposal, any actions required by the selection process be completed for unit candidates before such actions are completed for nonunit candidates. Thus, for example, the proposal does not contemplate concurrent rating and ranking of unit and nonunit candidates. See Local 2429, 38 FLRA at 1476-77. Cf. AFGE, Local 868, 45 FLRA 224, 228 (1992) (proposals that require an agency to give priority consideration to bargaining unit [ v61 p212 ] candidates but do not prevent the concurrent solicitation and rating and ranking of nonunit candidates do not affect management's right to select). Consequently, because Proposal 2 requires that priority consideration be given unit candidates before nonunit candidates are rated and ranked, it affects management's right to select under § 7106(a)(2)(C).
This case is therefore distinguishable from Ass'n of Civilian Technicians, Evergreen & Rainier Chapters, 57 FLRA 475, 478-81 (2001) (ACT) (Chairman Cabaniss dissenting in part) (citing ACT, Volunteer Chpt. 103, 55 FLRA 562, 565 (1999) (Chair Segal dissenting on other grounds); Laurel Bay Teachers Ass'n OEA/NEA, 49 FLRA 679, 687 (1994); AFGE, Local 1923, 44 FLRA 1405, 1493-94 (1992); NTEU, 43 FLRA at 1287-88 (1992)). None of those cases precluded the simultaneous rating and ranking of unit and nonunit candidates as does the proposal in this case. Moreover, as noted above, NTEU specifically states that a proposal that has such an effect impermissibly interferes with management's right to select under § 7106(a)(2)(C).
The Union does not claim that the proposal constitutes a procedure within the meaning of § 7106(b)(2) or an appropriate arrangement within the meaning of § 7106(b)(3). Consequently, the proposal is nonnegotiable.
Accordingly, we find that Proposal 2 is outside the duty to bargain. [n3]
IV. Proposal 3
Article 16, Section 7b Merit Staffing
No selection shall be made unless and until the selecting official has interviewed all available candidates on the certificate who are within the unit and given them first consideration.
A. Positions of the Parties
1. Agency
The Agency maintains that, based on its plain meaning, Proposal 3 would require management to interview and consider bargaining unit candidates before interviewing and considering applicants from outside the unit. As such, the Agency argues, the proposal "would unduly delay the merit staffing process wherein a unit employee was unavailable for the interview." Statement of Position at 9. Because of that potential for delay, the Agency asserts, the proposal violates management's rights under § 7106(a)(2) of the Statute. Specifically, citing BATF, the Agency maintains that the practical effect of the proposal is to create pressure on the selecting official to select a unit employee and thereby violates management's right to select under § 7106(a)(2)(C). For reasons that are similar to those it advanced in connection with Proposal 2, the Agency also asserts that the proposal constitutes a prohibited personnel practice under 5 U.S.C. § 2302(b)(6) and (12).
2. Union
The Union explains that, under Proposal 3, when a unit position is to be filled through merit staffing, all available bargaining unit candidates must be interviewed and given consideration before non-unit candidates and before a selection is made. The Union also explains that a rule of reason governs determinations as to whether a candidate is available for an interview. Further, according to the Union, interviews would not have to be done in person, but could be conducted over the phone.
B. Meaning of the Proposal
As worded and explained by the Union, Proposal 3 would require the selecting official, as a part of the merit staffing process, to interview all bargaining unit candidates for a vacant position, by whatever means are reasonable under the circumstances, before nonunit candidates are interviewed.
It is not entirely clear, however, how Proposal 3 would function in the overall context of the merit staffing procedures established by the Union's proposed Article 16. Although the Union stated at the post-petition conference, in reference to Proposal 2, that the term "consideration" could have different meanings in the different sections of this Article, the Union never explained the meaning that it intended in Proposal 3. In accordance with Authority precedent, which interprets proposed sections of an article consistently within the context of the article as a whole, see ACT, Volunteer Chapter 103, 55 FLRA 562, 567 n.12. (1999), we find that Proposal 3 would operate in conjunction with Proposal 2. When read in this manner, the Agency would have to engage in all the steps of the selection process for bargaining unit candidates first, that is, rating, ranking, and interviewing them, before developing a certificate of candidates who would then be interviewed in the order set forth in Proposal 3.
Further, as the Union has clearly established the overall principle of unit candidate priority for the proposed [ v61 p213 ] merit staffing process in Proposal 2, there is also no basis for interpreting Proposal 3 as merely requiring a particular sequencing of interviews after all candidates, both unit and nonunit, have been rated and ranked. Thus, for purposes of this decision, Proposal 3 is interpreted as requiring management to interview unit candidates, after such candidates have been rated and ranked, before completing the same process for nonunit candidates. See ACT, 57 FLRA at 477 (subparts of a section of an article are read together in order to interpret them consistently within the context of the article as a whole).
C. Analysis and Conclusions
This proposal would require the Agency to interview all bargaining unit candidates on the certificate and give them first consideration. In developing that certificate, the Agency would be required to take various actions consistent with Proposal 2. As set forth above, Proposal 2 impermissibly affects that Agency's right to select because, among other things, it would prevent the Agency from concurrently rating and ranking unit and nonunit candidates for bargaining unit vacancies. Inasmuch as the certificate would be developed, and the interviews conducted, before nonunit employees could be rated and ranked, we find that Proposal 3 also impermissibly affects the right to select.
Further, because the Union does not claim that Proposal 3 constitutes a procedure under § 7106(b)(2) of the Statute or an appropriate arrangement under § 7106(b)(3), the proposal is nonnegotiable.
Accordingly, we find that Proposal 3 is outside the duty to bargain.
V. Proposal 4
Article 28, Section 1
The Department shall conduct an evaluation of the safety and health program pursuant to 29 CFR 1960.80 within one year after the effective date of the contract, and shall thereafter conduct such an evaluation no less frequently than once every three years.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 is inconsistent with 29 C.F.R. § 1960.1(c), which incorporates Executive Order 12196. The Agency states that § 1-401(h) of the Executive Order provides that safety and health evaluations must be conducted as the head of the Agency deems necessary. By requiring that such evaluations be done on a periodic basis, the Agency contends that the proposal "interferes with" the Secretary of Labor's "discretion to determine which evaluations are necessary." Statement of Position at 15. According to the Agency, the proposal would require the Secretary to "allocate resources for periodic evaluations even where she did not deem it necessary that such an evaluation be conducted." Id.
The Agency also argues that: (1) the proposal concerns a general Occupational Safety and Health Administration (OSHA) policy matter; (2) there is therefore no direct connection between such safety and health evaluations and employees' working conditions; and (3) consequently, the proposal does not concern bargaining unit working conditions.
2. Union
The Union states that OSHA regulations, 29 C.F.R. § 1960.80, require periodic evaluation of the safety and health program to determine if it is effective. According to the Union, the term "periodic" as used in the proposal means that, within one year after the effective date of the contract, and every three years thereafter, the Agency would be required to conduct an evaluation of its safety and health program to ensure that the work environment is free of hazards.
B. Meaning of the Proposal
By its terms, and as explained by the Union, Proposal 4 requires the Agency to conduct an evaluation of the Agency's safety and health program, consistent with 29 C.F.R. § 1960.80, within one year from the effective date of the contract, and no less frequently than every three years thereafter. The Agency does not dispute the Union's interpretation of the proposal.
C. Analysis and Conclusions
Pursuant to the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651 et seq., the President issued Executive Order 12196 (E.O. 12196) prescribing the responsibility of Federal agencies to provide employees safe and healthful working conditions. See 29 U.S.C. § 668. Under the Act and E.O. 12196, agencies are required to establish safety and health programs designed to ensure that employees have "places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm." E.O. 12196, § 1-201(a). The Act and E.O. 12196 also require the Secretary of Labor to issue regulations prescribing the requirements governing the establishment and administration [ v61 p214 ] of agencies' occupational safety and health plans. The regulatory framework established by the Secretary of Labor is set forth in 29 C.F.R. §§ 1960.1 et seq. Thus, the Secretary of Labor is responsible both for setting the framework of such plans for Federal agencies and, as the head of a specific Federal agency, complying with the requirements of that framework.
The Agency's argument that the proposal concerns a general policy matter and that there is therefore no connection with conditions of employment is unavailing. By the terms of the Act and E.O. 12196, the purpose of the occupational safety and health plans in Federal agencies is to ensure employees' safe and healthful conditions of employment and working conditions. The legal and regulatory framework of the plans themselves establishes the requisite connection with conditions of employment. See Antilles, 22 FLRA at 237.
Further, 29 C.F.R. § 1960.80 requires the Secretary of Labor to conduct "complete and extensive" evaluations of agency safety and health programs "on a regular basis," which includes the programs in the Secretary's agency. As the Agency concedes, the regulation affords the Secretary discretion in this regard. That is, the Secretary is free under the regulation to define what would constitute "a regular basis" for evaluation of the program within the Secretary's own agency.
"[T]he Authority has consistently held that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or . . . regulation." POPA, 53 FLRA 625, 648 (1997). Proposal 4 concerns the Agency head's determination of how regularly evaluations of the Agency's safety and health programs will be conducted. As that matter falls within the Agency's discretion under 29 C.F.R. § 1960.80, the proposal is within the duty to bargain, unless it is otherwise inconsistent with law and regulation. The Agency raises no other grounds for finding the proposal inconsistent with law and regulation.
Accordingly, we find that Proposal 4 is within the duty to bargain.
VI. Proposal 5
Article 32, Section 4 Parking Facilities
The net cost of parking for employees working in non-government buildings shall be no more than that of employees at the FPB. The Department shall subsidize the difference in the cost of parking to employees working in such buildings.
A. Positions of the Parties
1. Agency
According to the Agency, Proposal 5 requires it to "subsidize the commercial parking costs for employees who work in non-government buildings so that the cost of the parking for such employees is the same as the cost for parking at the Francis Perkins Building (FPB)." [n4] Statement of Position at 16.
The Agency argues that the proposal is inconsistent with law, in particular, the Federal Property and Administrative Services Act (FPASA), 40 U.S.C. § 121 et seq. According to the Agency, the proposal concerns an employee's commuting expenses, which, under law, must be borne by the employee. Citing Comptroller General decisions, for example, 63 Comp. Gen. 270 (1984) and 49 Comp. Gen. 476 (1970), the Agency asserts that an agency may provide parking for employees only if it determines that the lack of such facilities will "significantly impair [the] efficiency of the agency and will be detrimental to the hiring and retention of personnel." Statement of Position at 17. The Agency argues that the proposal would require it to subsidize parking in circumstances in which the criteria for providing such parking are not met.
2. Union
The Union explains that the proposal provides that, where the monthly cost of parking for employees working in buildings other than the FPB exceeds the cost of parking for employees working in the FPB, the Agency will subsidize the difference.
Citing United States Dep't of Transportation, FAA, Northwest Mountain Region, Renton, Wash., 55 FLRA 293 (1999) (Northwest Mountain Region) and United States Dep't of Labor, Washington, D.C., 44 FLRA 988 (1992) (DOL), the Union argues that proposals related to the procurement of parking spaces and providing low cost parking are within the duty to bargain.
B. Meaning of the Proposal
Proposal 5, by its terms, and as explained by the Union, would require the Agency, where the cost of parking for unit employees working in buildings other than the FPB exceeds the cost of parking for employees working in the FPB, to subsidize the difference in cost. [ v61 p215 ]
The Agency states, and the Union does not dispute, that the proposal would apply not only to Agency facilities where the Agency has leased parking space as a part of leasing space at the facility, but to at least one facility where it has not leased parking space for unit employees. Thus, the proposal would require the Agency to subsidize employee parking in situations where the Agency has, on its own or through the General Services Administration, provided for employee parking and those in which it has not.
C. Analysis and Conclusions
Proposal 5 essentially requires the Agency to use appropriated funds to subsidize parking costs for employees who commute to work using their personal vehicles. "It is a well-established principle of constitutional law that `any disbursement of appropriated funds must be authorized by statute.'" AFGE, Local 1647, 59 FLRA 369, 371 (2003). See also Downs v. OPM, 69 F.3d 1141, 1143 (Fed. Cir. 1995).
This principle is consistent with the position of the Comptroller General, that "[a]n agency may not use appropriated funds to pay for items of personal expense unless there is a specific statutory authority." Matter of: Utility Costs under Work-At-Home Programs, 68 Comp. Gen. 502 (1989). See also Matter of: Use of Appropriated Funds to Provide Financial Incentives to Employees for Commuting by Means other than Single-Occupant Vehicle, 72 Comp. Gen. 225 (1993) ("Commuting is a personal expense, and personal expenses are not payable from appropriated funds absent specific statutory authority.") The Union has cited no statutory authority for payment of these expenses.
We note that, under the FPASA, the General Services Administration (GSA) has the authority, among other things, to lease space for the use of the Government, or to delegate that authority to agencies. 40 U.S.C. §§ 121(d)(1), (e)(1)(A) and (D), 581(c), 585. Where an agency has leased space for parking, either on its own because it has been delegated authority from GSA or through the GSA itself, the Authority has held that, proposals requiring management to subsidize employee parking costs are consistent with law. See, e.g., Northwest Mountain Region, 55 FLRA at 299; United States United States Dep't of the Treasury, IRS, 25 FLRA 843, 848 (1987). See also DOL, 44 FLRA at 994-95 (distinguishing NTEU and HHS on this ground). This holding is also consistent with Comptroller General precedent concerning the circumstances in which agencies can subsidize parking for employees under the FPASA. Accord 72 Comp. Gen. 139, 140-41 (1993). Thus, under Authority precedent, where an agency has leased space for employee parking, cost subsidies are negotiable; where the agency has not leased space for that purpose, such subsidies are not negotiable.
It is undisputed that at one facility covered by Proposal 5, the agency has not leased space for employee parking. The proposal requires the Agency to subsidize employee parking expenses regardless of whether the prerequisite of leased space is met in the circumstances to which it would apply. The proposal thus would require reimbursement for at least some employees whose circumstances do not meet the above requirements. The Union cites no authority for reimbursing employees who are using non-leased parking spaces. Moreover, nothing in the proposal seeks to require the Agency to obtain leasing authority for employee parking. Thus, to the extent that the proposal requires payment for employee commuter expenses where applicable statutory preconditions are not met, it is inconsistent with law because it requires the expenditure of appropriated funds for personal expenses not authorized by statute.
Accordingly, we find that Proposal 5 is outside the duty to bargain.
VII. Proposal 6
Article 41, Section 4d Official Time
Lobbying Congress. Union representatives shall be granted official time to lobby Congress concerning pending or desired legislation affecting conditions of employment of bargaining unit employees.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 6 as requiring it to allow employees to use official time to lobby Congress concerning pending or desired legislation affecting conditions of employment of bargaining unit employees.
The Agency asserts that the proposal is inconsistent with law, in particular, the Anti-Lobbying Act, 18 U.S.C. § 1913, and the Department of Labor Appropriations statute. [n5] According to the Agency, these statutory provisions preclude the use of appropriated funds for activities designed to generate grass-roots lobbying efforts with respect to pending legislation. In this case, [ v61 p216 ] the Agency argues, the expenditure of appropriated funds would come through the use of official time. Citing ACT, Old Hickory Chapter, 55 FLRA 811 (1999), which interprets and applies what the Agency describes as the Defense Appropriations Lobbying Act, the Agency argues that no appropriated funds can be used to influence congressional action on any legislation pending before Congress. The Agency claims that the Department of Labor appropriations statute therefore bars Proposal 6.
2. Union
The Union states that Proposal 6 permits Union representatives to use official time to lobby Congress on matters related to the conditions of employment of unit employees.
Citing Office of the Adj. Gen., N.H. Nat'l Guard, Concord, N.H., 54 FLRA 301 (1998) (New Hampshire Nat'l Guard), the Union contends that the proposal is not inconsistent with the Anti-Lobbying Act. According to the Union, in that case, and cases cited therein, the Authority held that proposals allowing the use of official time for Union representatives to lobby Congress regarding matters affecting conditions of employment were not inconsistent with 18 U.S.C. § 1913. The Union also notes that the Agency cites to no provision of any Department of Labor appropriations act that bars the use of appropriated funds for lobbying activities. In this regard, the Union also asserts that the Agency fails to demonstrate that the Defense Appropriations Lobbying Act applies to the Department of Labor.
B. Meaning of the Proposal
By its terms, Proposal 6 requires the Agency to grant Union representatives official time to lobby members of Congress concerning desired or pending legislation relating to conditions of employment of unit employees.
C. Analysis and Conclusions
The Authority has consistently held that 18 U.S.C. § 1913 does not preclude bargaining over proposals requiring agencies to grant union representatives official time to lobby Congress concerning desired or pending legislation relating to unit members' conditions of employment. See, e.g., New Hampshire Nat'l Guard, 54 FLRA 301 (1998); United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920 (1997) (Dep't of the Army) (Member Armendariz dissenting in relevant part); Dep't of Health and Human Services, SSA, 11 FLRA 7 (1983). The Agency provides no support for questioning that precedent. Consequently, contrary to the Agency's argument, Proposal 6 is not inconsistent with 18 U.S.C. § 1913.
The Union contends that funding for the Agency is not derived from Department of Defense appropriations bills and maintains that, therefore, the Agency is not subject to the limitations on lobbying provided in that legislation. Cf. New Hampshire Nat'l Guard, 54 FLRA at 308 n.9. The Agency has not demonstrated that those limitations apply to it. Additionally, while the Agency asserts that the proposal is inconsistent with its appropriations statute, the Agency offers no citation or argument to support this assertion. Consequently, there is no basis for finding that Proposal 6 is contrary to law.
Accordingly, we find that Proposal 6 is within the Agency's duty to bargain. [n6]
VIII. Proposal 7
Article 47, Section 2
The ground rules which govern negotiations of the new Agreement, including the procedure to be followed in any negotiation impasse, are detailed in Appendix A of this Agreement.
A. Positions of the Parties
1. Agency
According to the Agency, Proposal 7 requires that the ground rules set forth in Appendix A be used in the negotiation of a successor agreement. [n7] The Agency argues that the ground rules to be applied in negotiating a future term agreement is not a matter related to conditions of employment and, thus, is not a mandatory subject of bargaining. The Agency maintains that it "does not make any sense" to establish ground rules for bargaining that may not take place for many years in the future. Statement of Position at 24. The Agency cites Sport Air Traffic Controllers Organization (SATCO), 52 FLRA 339, 345-46 (1996) (Sport ATC) as support for the proposition that ground rules are a permissive [ v61 p217 ] subject of bargaining and states that it elects not to bargain over the proposal.
2. Union
Noting that the current collective bargaining agreement contains ground rules for the negotiation of a new agreement, the Union contends that Proposal 7 allows the parties to negotiate a new agreement without the expense or delay that result from having to negotiate those rules before beginning substantive negotiations.
B. Meaning of the Proposal
Proposal 7, by its plain terms, requires the parties to follow the ground rules set forth in Appendix A when negotiating a successor agreement.
C. Analysis and Conclusions
Appendix A referenced in the proposal was before the Authority in AFGE, Local 12. In that case, the Authority noted that it had "long held that ground rules affect conditions of employment of bargaining unit employees." 60 FLRA at 539 (citing AFGE, AFL-CIO, 15 FLRA 461, 462 (1984)). The Authority rejected the Agency's argument that Appendix A did not relate to conditions of employment because it concerned future bargaining. The Authority stated, in this regard, that the Agency's argument was "unpersuasive." Id. Specifically, the Authority noted that "the Agency has offered no explanation why the Authority's long-standing precedent, holding that ground rules affect conditions of employment of bargaining unit employees, should not be applied[.]" Id. The Agency offers no such explanation here as well.
The Agency's claim that the proposal concerns a permissive subject of bargaining is based on the Agency's claim that the proposal does not concern conditions of employment. See, e.g., FAA, Northwest Mountain Region, Seattle, Wash., 14 FLRA 644, 648 n.4 (1984) (matters otherwise consistent with law that do not concern conditions of employment are permissive subjects of bargaining). Because the Authority held that Appendix A concerns the conditions of employment of unit employees, this argument is unpersuasive. Contrary to the Agency's claim, the proposal constitutes a mandatory subject of bargaining.
Finally, the Agency's citation of Sport ATC is unavailing. In that case, the Authority adopted the findings, conclusions, and order of the Judge, in particular, the conclusion that recording bargaining sessions is a permissive subject of bargaining because such recording has a "tendency to inhibit . . . free and open discussion . . . ." 52 FLRA at 351 (citing Bartlett-Collins Co., 237 NLRB 770, 773 n.9 (1978)). The Agency points to no such effect in the ground rules at issue in Appendix A.
Accordingly, we find that Proposal 7 is within the duty to bargain.
IX. Proposal 8
New Article 13, Section 3 Details
a. A detail to a lower grade position normally shall not exceed three (3) months; otherwise, details shall not normally exceed four (4) months.
b. Details to the same or higher grade positions [] normally shall not be extended for more than four (4) months. Two weeks prior to the extension, the Union shall be provided with the name of the employee, the employee's permanent position, the position to which the employee is being detailed, the effective date of the extension, the duration of the extension, and the reason for the extension.
A. Positions of the Parties
1. Agency
The Agency states that it does not dispute the Union's explanation of Proposal 8. As such, the Agency understands the proposal normally to limit details to a lower-graded position to three months and details to a higher-graded position to four months, if the details are done competitively.
Citing NAGE, Local R5-82, 43 FLRA 25, 38 (1991) (Local R5-82) and other Authority precedent, the Agency maintains that, by limiting the duration of details, Proposal 8 improperly affects management's right to assign employees under § 7106(a)(2)(A) and to assign work under § 7106(a)(2)(B) of the Statute.
2. Union
The Union explains that the portion of the proposal limiting the duration of details to lower-graded positions is intended to minimize the adverse effect of the detail on the employee. According to the Union, the portion of the proposal relating to details to higher-graded positions is intended to allow employees to develop their skills in the higher position over a more extended period. The Union states that the notification requirement is intended to ensure that the Agency is not using the detail process to circumvent the merit staffing system. [ v61 p218 ]
B. Meaning of the Proposal
Insofar as is relevant to the disposition of the proposal, by its terms, and as explained by the Union, subsection (a) of Proposal 8 provides that details to lower-graded positions normally will not last more than three months. Subsection (b) of the proposal provides that extensions of details to positions of the same grade, or to higher-graded positions, normally will not last longer than four months.
C. Analysis and Conclusions
"The right to decide when an assignment should begin and end is inherent in the right to assign employees under § 7106(a)(2)(A)." NTEU, 31 FLRA 31, 33 (1988) (NTEU). Thus, the right to assign employees includes the right to determine the duration of an assignment. See AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1317 (1996) (citing NAGE, 37 FLRA 263, 274 (1990)); NTEU, 31 FLRA at 33. Proposals that limit the duration of details therefore affect the exercise of management's right to assign employees under § 7106(a)(2)(A). See, e.g., AFGE, Local 3172, 48 FLRA 489, 491-92 (1993) (AFGE, Local 3172) (citing AFGE, Local 1658, 44 FLRA 1375, 1379 (1992); NTEU, 31 FLRA at 33-34). Moreover, the Authority has consistently held that the use of certain qualifying language in a proposal does not eliminate the effect of the proposal on the exercise of a management right. See, e.g., AFGE, Local 3172, 49 FLRA 302, 308 (1994) (citing AFGE, Local 1760, 46 FLRA 1285, 1288-89 (1993); Local R5-82, 43 FLRA at 37-40. Specifically, a proposal providing that details will normally be limited to 3 months has been held to affect management's right to assign employees under § 7106(a)(2)(A) of the Statute. See Local R5-82, 43 FLRA at 38. Because subsection (a) provides that details to lower-graded positions normally will be limited to 3 months, consistent with Local R5-82, it affects management's right to assign employees under § 7106(a)(2)(A). Id.
The Union states, with no supporting argument, that subsection (a) is a procedure under § 7106(b)(2) of the Statute. Union Response at tenth unnumbered page. In the absence of any argument, or citation to Authority precedent, such a bare assertion is insufficient to demonstrate the negotiability of the proposal under § 7106(b)(2). See, e.g., NAGE, Local R1-109, 53 FLRA 403, 411 (1997).
The Union states that subsection (a) is intended to minimize the adverse effect of such a detail on employees and claims that the proposal is an appropriate arrangement under § 7106(b)(3). However, we find that the Union has failed to support that claim. Specifically, a threshold question under the Authority's analytical framework for determining whether a proposal constitutes an appropriate arrangement is whether the proposal addresses the adverse effects of a management right on employees. In order to resolve that question, the Authority examines evidence as to the claimed adverse effect. See NAGE, Local R14-87, 21 FLRA 24, 31-33 (1986).
The Union herein fails to explain how employees are adversely affected by a detail to a lower-graded position. In terms of its impact on the employee, it is not clear how a detail to a lower-graded position would differ from a detail to any other position, whether of the same grade or a higher grade. The employee is doing the work of a position that is not his or her permanent position, but there is no explanation as to how that would adversely affect the employee. In particular, although the Union cites Local R5-82, wherein the Authority held that a proposal providing that details to lower-graded positions would normally be limited to three months constitutes an appropriate arrangement, the Union makes no attempt to explain how the adverse effect on employees found in that case would be the same as the adverse effect claimed in this case. [n8] In the absence of any evidence as to the manner in which a detail to a lower-graded position would adversely affect unit employees in this case, the Union has not demonstrated that the proposal is an arrangement for employees adversely affected by the exercise of a management right. See, e.g., AFGE, Local 3172, 48 FLRA at 493.
Moreover, even assuming that subsection (a) constitutes an arrangement for employees adversely affected by the exercise of a management right, the Union has failed to create a record sufficient for the Authority to assess the benefits to employees that are to be derived from the proposal. Consequently, the Authority is unable to balance the benefits to employees against the effect of the proposal on management's rights. Id. As the Union has failed to provide a basis for determining whether subsection (a) constitutes an appropriate arrangement under § 7106(b)(3), and because subsection (a) affects management's right to [ v61 p219 ] assign employees under § 7106(a)(2)(A), it is outside the duty to bargain.
The Union did not request that Proposal 8 be severed. Therefore, because we find that subsection (a) is nonnegotiable, we find that Proposal 8 as a whole is outside the duty to bargain. See ACT, Wichita Air Capitol Chapter, 60 FLRA 342, 347 (2004).
X. Proposal 9
New Article 13, Section 4 Details
a. If an employee performs the duties of a higher grade position, the employee will be entitled to receive the pay of the higher grade for the duration of the detail.
b. When it is necessary to detail an employee to a higher grade position or to a position with known promotion potential, the planned detail should be posted for at least ten (10) days.
c. The notice should include a description of the proposed work assignment, the length of the detail, the qualifications being sought, special requirements, and any other potential information.
d. Selection for the detail should be based solely on qualifications.
(Only subsections (a) and (b) are in dispute).
D. Positions of the Parties
1. Agency
The Agency states that subsection (a) of the proposal requires that employees detailed to a higher-graded position be paid at the grade level of that position, even if they perform only a "minor fraction" of the duties of the position. Statement of Position at 30. The Agency contends that the proposal is nonnegotiable.
The Agency states that subsection (b) of the proposal requires it to post any detail, even if it is for a short duration. Citing Authority precedent, the Agency contends that proposals limiting the duration of a detail improperly affect management's right to assign employees under § 7106(a)(2)(A) of the Statute.
2. Union
The Union states that subsection (a) requires that employees' pay be based on the grade-level of the position to which they have been assigned. According to the Union, the proposal requires that employees detailed to a higher-grade position be paid at that grade level. The Union states that the proposal only applies when employees are detailed to a higher-graded position. The Union explains that when an employee is detailed to a higher-graded position, an "automatic temporary promotion" is intended. Record of Post-Petition Conference at 6. The Union asserts, citing NTEU, Chapter 22, 29 FLRA 348, 352 (1987), that proposals requiring temporary promotions for details to higher-graded positions have been held to be negotiable. The Union also maintains, citing NAGE, Local R12-29, 19 FLRA 939, 940, 945 (1985), that such proposals have been held to be negotiable even if the detail was for a short duration and did not cover the entire range of the duties of the higher-graded position.
As to subsection (b), the Union states that the proposal, by requiring 10 days' notice of any planned detail to a higher-graded position, is intended to give qualified employees an equal opportunity to express interest in the detail if they choose to do so. The Union claims, citing AFGE, AFL-CIO, Local 2272, 9 FLRA 1004, 1019-20 (1982) (Local 2272), that proposals requiring notice of a proposed detail have been found to be negotiable.
E. Meaning of the Proposal
By its terms, and as explained by the Union, subsection (a) of Proposal 9 requires employees who have been detailed to a higher-graded position to be paid at the rate appropriate for the higher-grade level. Subsection (b) of the proposal, as worded, requires the Agency to provide 10 days' notice to unit employees of any proposed detail to a higher-graded position.
F. Analysis and Conclusions
1. Subsection (a)
The Authority has consistently held that proposals requiring that employees who are detailed to higher-graded positions be temporarily promoted and paid at the rate of the higher-graded position are within the duty to bargain. See, e.g., NFFE, 29 FLRA 1491, 1494-96 (1987); NAGE, Local R12-29, 19 FLRA at 941; Methods and Standards Assoc., 2 FLRA 286, 287-88 (1979); AFGE, AFL-CIO, 2 FLRA 604, 628-30 (1980) (AFGE). Although subsection (a) of the proposal does not expressly require that employees be temporarily promoted as a precondition to compensation at the higher-grade level, as required by law, the Union explains that a temporary promotion is automatic under the proposal. The Agency does not dispute this interpretation. Moreover, the Agency provides no support for its claim that the proposal requires employees detailed to a higher-graded position to be paid at the rate of the [ v61 p220 ] higher-graded position, even if they perform only a "minor fraction" of the duties of the position. Further, the Agency cites no authority for the proposition that employees may not be paid at the higher rate if they do not perform more than a "minor fraction" of the duties of the higher-graded position. Consequently, the Agency has failed to demonstrate that subsection (a) of Proposal 9 is outside the duty to bargain. [n9]
2. Subsection (b)
As to subsection (b), the Authority has held that proposals requiring advance notice of an agency action, or of a specific event, are negotiable as procedures under § 7106(b)(2) of the Statute. See, e.g., Service and Hospital Employees Internat'l Union, Local 150, 35 FLRA 521, 527-28 (1990); FUSE, NAGE, 23 FLRA 360, 363 (1986). In particular, a proposal requiring management to provide employees advance notice of a detail constitutes a negotiable procedure, within the meaning of § 7106(b)(2), which management will observe in exercising its right to assign employees under § 7106(a)(2). See Local 2272, 9 FLRA at 1019-21. See also AFGE, AFL-CIO, Internat'l Council of United States Marshals Service Locals, 2 FLRA 765, 766-67 (1980) (requirement to post notice of all vacancies for which unit employees are eligible to apply).
Subsection (b) of Proposal 9 requires that proposed details to higher-graded positions be posted for 10 days prior to the effectuation of the detail. Consistent with the precedent cited above, because subsection (b) merely provides for advance notice of such details, it constitutes a negotiable procedure within the meaning of § 7106(b)(2) of the Statute. Contrary to the Agency's claim, nothing in the proposal prescribes the duration of any detail to a higher-graded position or otherwise limits management's ability to detail employees. Consequently, subsection (b) is within the duty to bargain.
Accordingly, we find that the disputed portions of Proposal 9 are within the duty to bargain. [n10]
XI. Proposal 10
New Article 14, Section 2A, B, and C
A. For assignment within a PDS, the following procedures shall apply:
1. Management shall provide the Union with notice of its intention to reassign employees.
2. Management shall identify the potential pool of employees and solicit volunteers from among them.
3. If there are more volunteers than needed, the employee with more seniority should normally be offered the reassignment.
4. If there are no volunteers, the least senior employee should normally be reassigned.
B. For reassignment outside a PDS, but within the commuting area, the following procedures shall apply:
1. Management shall provide the Union with notice of its intention to reassign employees.
2. Management shall identify the potential pool of employees and solicit volunteers from among them.
3. If there are more volunteers than needed, the employee with the most seniority should normally be offered the reassignment.
4. If there are no volunteers, the least senior employee should normally be reassigned.
5. To the extent possible, the reassigned employee should normall[y] be given fifteen (15) work days notice.
C. There shall be no involuntary reassignment outside the commuting area. [ v61 p221 ]
A. Positions of the Parties
1. Agency
The Agency states that, as explained by the Union, Proposal 10 establishes the procedures management must follow when reassigning employees both within and outside their permanent duty station (PDS). According to the Agency, the Union intends that, under the proposal, once management "identifies the potential pool of qualified employees, selection from volunteers must be done on [an] equitable basis[,] factoring in seniority if employees are equally qualified." Statement of Position at 34.
The Agency argues, citing, for example, NFFE, Local 1482, 45 FLRA 52, 69-70 (1992), that the right to assign employees under § 7106(a)(2)(A) includes the right to determine the qualifications and skills needed to do the work of the position to which employees would be assigned. Specifically, citing AFGE, Local 3935, 59 FLRA 481, 482-84 (2003), the Agency contends that proposals that preclude management from assessing employees' relative qualifications for performing the work of the position are nonnegotiable. The Agency argues that Proposal 10 requires management "to reassign volunteers or to use seniority as the criterion for reassignment where management had not determined that the employees were equally qualified for the assignment." Statement of Position at 35.
The Agency also contends that, because "the proposal would prohibit management from directing the involuntary reassignment of employees outside of the commuting area[,]" it would excessively interfere with management's right to assign work under § 7106(a)(2)(B). Statement of Position at 35.
2. Union
The Union claims generally that Subsections A, B, and C of Proposal 10 establish procedures governing reassignments. Specifically, the Union states that Subsections A and B of Proposal 10 specify procedures management must follow when employees are being reassigned within, or outside, their PDS. The Union states that, under the proposal, once management determines the employees who are qualified for the reassignment, selection from among those who volunteer will be done equitably, factoring in seniority if the employees are equally qualified. The Union asserts that the proposal is intended to "minimize the adverse impact on employees who are reassigned" and, thus, that the proposal is an appropriate arrangement.
The Union disagrees with the Agency's characterization of the proposal as allowing unqualified employees to be reassigned. Citing, among other cases, AFGE, Local 3295, 47 FLRA 884, 902, 906 (1993), the Union claims that proposals requiring management to select for an assignment the most senior volunteer from among equally qualified volunteers have been held to be negotiable. The Union also maintains that proposals requiring notice to employees before they are reassigned have been found negotiable.
B. Meaning of the Proposal
As worded, Subsections A and B of Proposal 10 prescribe the procedures governing assignments within a permanent duty station and reassignments outside a permanent duty station, but within a commuting area. Subsection C of the proposal also precludes the Agency from making involuntary reassignments.
C. Analysis and Conclusions
Management's right to assign employees under § 7106(a)(2)(A) of the Statute includes the right to make initial assignments to positions, to reassign employees to different positions, and to make temporary assignments or details. See, e.g., POPA, 53 FLRA 625, 640 (1997). Proposals that preclude management from taking action pursuant to a right under § 7106(a) affect the exercise of the right. See, e.g., NAGE, Local R1-203, 55 FLRA 1081, 1085 (1999); Overseas Education Assoc., Inc., 27 FLRA 492, 496 (1987); NFFE, Local 1650, 12 FLRA 611 (1983).
Subsection C of Proposal 10 precludes management from making involuntary reassignments outside the commuting area. Consequently, Subsection C improperly affects management's right to assign employees under § 7106(a)(2)(A) of the Statute. Further, the Union provides no support for its general claim that Subsection C is either a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3) of the Statute. In the absence of such support, the Union's claim constitutes a bare assertion that the Authority has consistently refused to consider. See, e.g., AFSCME, Local 2830, 60 FLRA 124, 127 (2004). Thus, Subsection C is outside the duty to bargain under the Statute. See Fed. Educ. Assoc., Stateside Region, 56 FLRA 473, 475 (2000).
Finally, because the Union does not request that the various subsections of Proposal 10 be severed for separate consideration, we find that Proposal 10 as a whole is nonnegotiable. Id.
Accordingly, we find that Proposal 10 is outside the duty to bargain.
XII. Order
The petition for review as to Proposals 1-3, 5, 8, and 10 is dismissed. The Agency is ordered to bargain, on request, as to Proposals 4, 6, 7, and 9. [ v61 p222 ]
APPENDIX
Appendix A
Ground Rules
These ground rules are to govern the conduct of negotiations for a new collective bargaining agreement between DOL and AFGE Local 12. The guiding principle is that agreements worked out between the Parties are most likely to deal constructively with the actual issues. Agreements worked out by the Parties are also more likely to be adhered to. Thus the procedures outlined here are intended to give the Parties the maximum opportunity to deal with the issues bilaterally. At the same time, the taxpayers will receive value in that the negotiators will not be required to ignore important DOL business for an extended period.
A. Bargaining Teams.
(1) Members:
a. Each team will consist of up to ten (10) permanent members.
b. Each team will provide the other with a list of its permanent members prior to the start of negotiations.
c. Each team may designate a replacement member in the absence of a permanent member. Information on replacement members, if any, will be exchanged by the Parties prior to the start of each session.
(2) Either Party may at its expense call in experts or additional representatives for the purpose of providing specific information relative to matters that may be the subject of negotiations.
B. Facilities and Services.
(1) DOL will provide suitable bargaining and caucus rooms in the Frances Perkins Building. The Union caucus room will include a conference area and be equipped with the normal office equipment, including but not limited to computers, printer, telephones, and copier.
(2) Research Materials: The Department will provide to the Union team a hard copy of the Department of Labor Manual Series, the Dept. of Labor Personnel Regulations, Title 5 of the U.S. Code, Code of Federal Regulations Volumes 5 and 29, and such others which may be necessary, along with appropriate updates, for use at negotiations.
C. Negotiation Sessions.
(1) Schedule. The Parties will meet to open negotiations at 10:00 a.m. on the 10th workday following the exchange of proposals and will meet thereafter on the following schedule:
Daily Schedule Start Recess
Tuesday 10:00 a.m. 3:00 p.m.
Wednesday 10:00 a.m. 3:00 p.m.
Thursday 10:00 a.m. 3:00 p.m.
(2) Each of these days shall count as a bargaining day.
(3) The lunch recess shall be for one hour each day.
(4) Either Party may caucus at any time during the negotiating session.
(5) Recesses:
a. The negotiations shall be recessed on all days in which AFGE Local 12 has a scheduled membership meeting or training.
b. Further recesses from the daily schedule of negotiations require the mutual consent of the Parties.
(6) Any DOL employee may observe any negotiating session on his or her own time.
D. Procedures.
(1) General: The Parties will make every effort to conclude a new collective bargaining agreement through direct negotiations. If direct negotiations are unsuccessful, the Parties will enter into negotiations under the mediation procedures established herein. If such mediation efforts do not result in full and complete settlement of all differences, the Parties, in accordance with Section 7119(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute), shall follow this impasse procedure on an item-by-item basis. The neutral selected in accordance with Section (2) below to act as the mediator will, if necessary, also serve as the arbitrator in the event of arbitration.
(2) Mediator/Arbitrator:
a. Selection. Within fifteen (15) workdays from the effective date of these ground rules, the Parties will meet to select the Mediator/Arbitrator (M/A) by mutual agreement. If such a selection is not agreed to by the Parties after a joint conference held for the purpose of making such a selection, the Parties shall jointly request the American Arbitration Association to provide a list of [ v61 p223 ] seven (7) arbitrators who are available and willing to serve under these ground rules. Such a request shall state that the list of arbitrators include, to the extent practicable, persons experienced in mediation and in interest arbitration in the public sector. Within twenty (20) workdays from receipt of the list, the Parties shall meet to make a joint selection. If the Parties cannot agree on the selection of a M/A, then each shall alternately strike one name from the list, first strike determined by the toss of a coin, until only one remains. The remaining person shall be the M/A. In the event the selected M/A fails to serve or refuses to serve, the selection process will be repeated.
b. Costs: The Department and the Union shall each pay one-half of the costs of the M/A.
c. Jurisdiction: In the event of arbitration, the jurisdiction of the M/A shall be limited specifically to the items submitted. The items submitted shall consist only of those which have been the subject of either direct negotiations or mediation.
(3) Mediation:
a. The Parties agree to conduct direct negotiations for a period of sixty (60) bargaining days.
b. After fifty-five (55) bargaining days, either Party may request the M/A to provide mediation services in accordance with these ground rules. Such services will commence on the sixty-first (61st) bargaining day.
c. Mediation under the auspices of the M/A will continue for a period of twenty (20) bargaining days unless the Parties reach agreement sooner. The M/A, at the request of either Party, may extend the period of mediation for an additional twenty (20) bargaining days. The Parties may mutually agree to further extend the period for mediation by the M/A.
(4) Interest Arbitration:
a. In the event agreement is not reached in the mediation process by the expiration of the time frame stipulated in paragraph (3)c. above, the M/A shall commence the interest arbitration proceeding no later than ten (10) bargaining days from the termination of mediation under these ground rules.
b. The arbitration proceedings shall be conducted by the M/A in such fashion as to afford all Parties a full and fair opportunity to be heard.
c. Notwithstanding any other provision of these ground rules, the M/A may make suggestions for settlement of any issue.
d. Within ten (10) bargaining days following the termination of mediation, the Parties shall submit in writing to the M/A, with copies to each other, the separate and specific last offers or positions on each of the Party's unresolved proposals.
e. Each Party shall, to the degree it deems necessary, provide the other, in accordance with Section 7117(c) of the Statute, with a copy to the arbitrator, a statement concerning the negotiability of each of the other Party's final offers. Such a negotiability statement shall be served within five (5) bargaining days of the date of receipt of the submissions made under paragraph d. above. The Parties will have five (5) bargaining days to review and consider each Party's position on duty to bargain as contained in the negotiability statements. At the request of either Party, the Parties will meet within three (3) bargaining days of their receipt of the negotiability statements to explore changes in their submissions as a result of the review and consideration of the other's negotiability position. Either Party may request that three (3) additional bargaining days be set aside to complete the negotiability review. Either Party may change its initial submission to the M/A as a result of the review. Any such change in either Party's initial submission shall be served on the M/A (and the other Party) immediately following the end of the review period. All unresolved questions of negotiability will be handled in accordance with Item E(6) of these ground rules.
f. The M/A will render a written decision with discussion for bargaining history purposes on each of the items submitted under paragraph d. above within twenty (20) bargaining days of the date of final submission. The M/A shall be limited to selecting one of the Parties' proposals on a final offer item-by-item basis. Proposal items that involve questions of negotiability subject to determination by the Federal Labor Relations Authority under Section 7117 of the Statute will be handled in accordance with Item E(6) of these ground rules.
g. The award will be final and binding and in conformity with the Federal Service Labor-Management Relations Statute.
(5) Interpretation: Any differences arising as to the meaning of these ground rules shall be referred to the M/A for a ruling in accordance with the provisions of D(4) of these ground rules. Such a ruling by the M/A will be final and binding.
E. Exchange of Proposals.
(1) Date of Exchange: The Parties will exchange contract proposals in contract language format no later than
[ v61
p224 ]
COB fifteen (15) workdays from the selection of the mediator/arbitrator (M/A).
(2) Proposals Added: Each Party may add to proposals through the tenth (10th) negotiation session.
(3) Open Subject Items:
a. Only items included in the exchange of proposals, or added through the tenth (10th) negotiation session, shall be open for negotiations.
b. Additional items may be opened only by mutual agreement of the Parties, except in instances where the application of law or higher regulation mandates that such matters be considered.
c. No proposal shall be ripe for negotiation until all information requests have been answered.
(4) Either Party may modify its own proposals or submit counterproposals at any time.
(5) The Department agrees to negotiate on all 5 U.S.C. 7106(b)(l) items.
(6) Negotiability:
a. The Department will, after fully exploring the matter with the Union, provide the Union with a written allegation on any matter on which it believes it has no duty to bargain under the Statute, in accordance with Federal Labor Relations Authority Rules.
b. The Union may institute an appeal of the Department's duty-to-bargain determination on or before the 15th workday after the date on which the Department serves the written determination on the Union.
c. The Department will not issue any duty-to-bargain allegations within the meaning of Section 7117 of the Statute prior to the end of the 40th bargaining day.
d. Either Party may submit proposals and initiate negotiations on an item determined to be negotiable by the Federal Labor Relations Authority. Such negotiations will commence within thirty (30) bargaining days from the date of the receipt of the determination.
e. The impasse procedure established by Item D of these ground rules shall apply, if necessary, to the negotiations contemplated in paragraph d. above.
F. Tentative Agreement.
(1) Upon reaching agreement on each provision, the spokesperson of each Party shall sign off on such agreement by initialing the tentatively agreed-upon provision. Agreement on individual provisions will be tentative pending agreement on an entire contract.
(2) The contract will not be complete and ripe for ratification until all provisions have been dealt with, including all negotiability appeals.
G. Records of Negotiating Sessions.
(1) No Officia1 Record: There will be no official record of any negotiating session, except that which would be developed under the impasse procedure.
(2) Bargaining Notes: Either party may take its own notes of bargaining sessions.
H. Authority of Teams.
(1) Department's Team: The Department's negotiating team is authorized by the Secretary to negotiate all items that are subject to negotiations under the Federal Service Labor-Management Relations Statute.
(2) Union's Team: The Union's negotiating team is authorized by its membership to negotiate all items that are subject to negotiation under the Federal Service Labor-Management Relations Statute.
(3) Ratification: The agreement reached is subject to ratification by the Union membership.
File 1: Authority's Decision in 61
FLRA No.
40
File 2: Opinion of Member Pope
Footnote # 1 for 61 FLRA No. 40 - Authority's Decision
Member Pope's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision. Member Armendariz concurs in this decision except as noted at note 6 with respect to Proposal 6.
Footnote # 2 for 61 FLRA No. 40 - Authority's Decision
The Union's claim that, as a matter of past practice, a Union representative has been a member of the governing board of the Fitness Center does not establish the negotiability of the proposal. See, e.g., NAGE, Local R1-144, Federal Union of Scientists and Engineers, 38 FLRA 456, 473 (1990) (citing Fraternal Order of Police, Lodge 1F, (R.I.) Federal, 32 FLRA 944, 947 (1988).
Footnote # 3 for 61 FLRA No. 40 - Authority's Decision
Because the proposal is outside the duty to bargain under § 7106, it is unnecessary to address the Agency's other arguments.
Footnote # 4 for 61 FLRA No. 40 - Authority's Decision
The Francis Perkins Building is the headquarters building of the Department of Labor.
Footnote # 5 for 61 FLRA No. 40 - Authority's Decision
Although the Agency does not identify which appropriation act it refers to, we assume that it refers to the act covering the then current Fiscal Year.
Footnote # 6 for 61 FLRA No. 40 - Authority's Decision
Member Armendariz does not concur in the result finding this proposal negotiable. Rather, consistent with his opinion in Dep't of the Army, Member Armendariz would request an advisory opinion from the Department of Justice as to whether 18 U.S.C. § 1913, a criminal statute enforced by the Department of Justice, precludes an agency from granting employees official time to lobby Members of Congress on matters pertaining to unit employees' conditions of employment.
Footnote # 7 for 61 FLRA No. 40 - Authority's Decision
Appendix A referenced in the proposal relates to a proposal, found negotiable, in AFGE, Local 12, 60 FLRA 533, 539-40 (2004) (AFGE, Local 12) (Member Armendariz concurring) that has been incorporated as a part of the record herein. See the Appendix to this decision.
Footnote # 8 for 61 FLRA No. 40 - Authority's Decision
Unlike in this case, the Union in Local R5-82 made a specific factual showing as to the effect on employees of details to lower- graded positions. The Authority has reached different conclusions as to whether similarly worded proposals constitute appropriate arrangements under § 7106(b)(3) based on the unions' showing of adverse effects as to those proposals. Compare Local R5-82, 43 FLRA at 38-40 with AFGE, AFL-CIO, Local 1770, 28 FLRA 493, 512-514 (1987).
Footnote # 9 for 61 FLRA No. 40 - Authority's Decision
Chairman Cabaniss and Member Armendariz note that the proposal does not prescribe the length of the detail to which it would apply. Although the Agency did not argue the effect of 5 C.F.R. § 335.103(c)(1)(i) on the negotiability of the proposal, they also note that in United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Ctr., Charleston, S.C., 60 FLRA 46, (2004) (Chairman Cabaniss and Member Pope concurring on different grounds), the Authority held, deferring to an advisory opinion of the Office of Personnel Management, that details that are longer than 120 days must be made through competitive procedures. There is nothing in the record of this case indicating that the Union intends that details covered by Proposal 9 are required to extend beyond 120 days without application of competitive procedures. Therefore, as they would interpret the proposal, it is consistent with 5 C.F.R. § 335.103(c)(1)(i). Since the Agency did not raise the regulation, Member Pope would not address it.
Footnote # 10 for 61 FLRA No. 40 - Authority's Decision
To the extent that the Agency's arguments could be construed as claiming that the proposal violates management's right to assign work under § 7106(a)(2)(B) of the Statute, we note that the proposal would have no such effect because it would neither require the Agency to assign work nor inhibit the assignment of work in any way.