[ v21 p658 ]
21:0658(84)NG
The decision of the Authority follows:
21 FLRA No. 84
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 644, AFL-CIO
Union
and
U.S. DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION
Agency
Case No. 0-NG-849
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of six union proposals. /1/ The proposals concern the
relocation of the employees of the Occupational Safety and Health
Administration's (OSHA) Area offices at Erie and Pittsburgh,
Pennsylvania.
II. Procedural Issue
The Union's Petition for Review sets forth proposals both as
originally presented at the bargaining table and as subsequently
modified in the course of bargaining. Section 2424.4(a)(3) of the
Authority's Rules requires the union in its petition to submit the
agency's written allegation as to the nonnegotiability of the proposals
for which review is being sought. The Union's petition in this case
included written declarations of nonnegotiability for the original
proposals only. There is no indication in the record that the Union
requested a written allegation of nonnegotiability as to the subsequent
proposals. Consequently, the Authority will only decide the
negotiability of the original proposals.
III. Union Proposals 1 and 2
Union Proposal 1 (Erie)
The new space will be structures to provide individual offices for
each bargaining unit employee.
Union Proposal 2 (Pittsburgh)
All CSHO's will be provided with offices in accordance with what they
have at the present time (9 private offices and 6 offices with 2 CSHO's
per office).
A. Positions of the Parties
The Agency argues that the Union has not shown any impact to which
Proposals 1 and 2 relate, and that the Agency's actions, therefore, do
not constitute changes in conditions of employment sufficient to create
a duty to notify the Union and afford it an opportunity to request
bargaining. The Agency also contends that the proposals would require
it to negotiate over the technology of performing work in violation of
section 7106(b)(1) of the Statute.
The Union states that Proposals 1 and 2 were intended to ensure that
employees obtain in the new locations the same amount of work space they
had in their prior locations. The Union contends that the proposals do
not concern the technology of performing work.
B. Analysis and Conclusion
As to the argument concerning changes in working conditions, the
Authority has consistently held that it will only decide in a
negotiability appeal issues which are before us under section
7105(a)(2)(D) and (E) of the Statute. To the extent that there are
factual issues in dispute between the parties concerning the duty to
bargain in the specific circumstances of this case, these issues may be
raised in other appropriate proceedings. See 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).
As to the Agency's contention that the proposals are nonnegotiable,
the Authority has held that for a proposal concerning office space
design to violate an agency's right to determine the technology of
performing work, an agency must show (1) that its choice of office space
design has a technological relationship to the accomplishment and
furtherance of its work and (2) that the proposal would interfere with
these purposes. See Department of the Treasury, Internal Revenue
Service, Midwest Regional Office, Chicago, Illinois, 16 FLRA 141, 143
(1984) and cases cited there. The Agency contends that the field
investigatory personnel covered by the proposals are "expected to be
away from the office a preponderant percentage of work time in the
conduct of inspection activities required to be performed at the
worksites of employers . . ." The Agency argues that open space
technology represents a balance between "cost and Governmental
efficiency and accomplishment of OSHA's enforcement programs." Agency
Statement of Position at 2,3.
The Union states, and the Agency does not dispute, that the covered
employees are currently housed in private offices even though they
currently spend the bulk of their time in the field. Union Petition for
Review at 1,3. Since the proposals would not alter the Agency's current
practice, and the Agency has not shown how continuing its current
practice would interfere with the accomplishment and furtherance of its
work, the Authority concludes that the Agency has not demonstrated that
open space design has a sufficient technological relationship to
accomplishing or furthering the Agency's work to interfere with its
determination regarding "technology" in any significant way.
Accordingly, the Authority finds that Union Proposals 1 and 2 are within
the duty to bargain. Contrast American Federation of State, County and
Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 19
FLRA No. 130 (1985) (Union Proposal 1) in which the Authority concluded
that a proposal to allow employees their preference of seating
assignments was contrary to the agency's right under section 7106(b)(1)
of the Statute to determine the methods and means of performing work
because the grouping of employees based on their "primary function" was
designed to enhance the agency's ability to accomplish its function in a
more efficient and effective manner.
Union Proposal 5 (Pittsburgh)
The library/conference room shall be relocated and that space
converted into office space.
A. Positions of the Parties
The Agency argues that the Union has not shown any adverse impact to
which Proposal 5 relates, and that the Agency's actions, therefore, do
not constitute changes in conditions of employment sufficient to create
a duty to notify the Union and afford it an opportunity to request
bargaining. The Agency also contends that the proposal violates its
rights under section 7106(b)(1) to determine the technology, methods and
means of performing its work and under section 7106(a)(1) to determine
its internal security practices.
The Union contends that the proposal is intended to lessen the impact
on employees of the move itself by making the larger space intended as a
library/conference room into office space and placing the
library/conference room in a smaller area.
B. Analysis and Conclusion
As to any factual disputes concerning the existence of an obligation
to bargain, see Wurtsmith Air Force Base discussed above with respect to
Proposals 1 and 2.
As to whether the proposal violates section 7106(b)(1), the Authority
finds that the Agency has not provided sufficient support in the record
to determine whether the proposal violates the Agency's right to
determine the technology, methods and means of performing work. See
above discussion concerning Union Proposals 1 and 2.
With respect to the argument concerning internal security, the
Authority finds that Union Proposal 5 was intended as an arrangement for
employees adversely affected by the office move. In National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4, slip op. at 8-10 (1986) the Authority set
forth the factors it will consider in determining whether a proposal
constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute or is outside the duty to bargain because it
excessively interferes with the exercise of management's rights. One of
the factors to be weighed in determining whether a proposed arrangement
is appropriate is the nature and extent of the impact on management's
ability to act pursuant to its statutory rights. Id. at 9. An agency's
right to determine its internal security practices includes the right to
determine policies and actions necessary to secure its property against
internal or external risks. National Association of Government
Employees, SEIU, AFL-CIO and Department of the Air Force, Scott Air
Force Base, Illinois, 16 FLRA 361, 362 (1984). The Agency contends that
the library's location was chosen so that administrative personnel could
monitor its use and the removal of library materials. Agency Statement
of Position at 4. The Union agrees that the Agency's concern is
"valid." Union Petition for Review at 3. The Authority finds that the
location of the library/conference room where it could be monitored by
administrative personnel constitutes part of the Agency's plan to
safeguard its property and that the Union's proposal would interfere
with the Agency's determination. The Authority also finds that the
benefit to the employees of having the additional space is not
sufficient to overcome the detriment to the Agency's security plan.
Consequently, the Authority concludes that Union Proposal 5 excessively
interferes with the Agency's right under section 7106(a)(1) of the
Statute to determine its internal security practices and is outside the
duty to bargain.
V. Union Proposals 6 and 11
Union Proposal 6 (Erie)
Free parking spaces will be provided.
Union Proposal 11 (Pittsburgh)
Free parking will be provided for GOV's and POV's within
walking distance of the Federal building.
A. Positions of the Parties
The Agency contends that employee parking is governed by
Government-wide regulation within the meaning of section 7117(a)(1) of
the Statute. It argues that General Services Administration (GSA)
retains exclusive responsiblity for determining allocations of space for
vehicle parking and that the Agency, therefore, is without discretion to
provide parking facilities on its own. Additionally, the Agency argues
that, because the subject is covered by Government-wide rule or
regulation, national consultation rights under section 7113 of the
Statute apply rather than collective bargaining.
The Union contends that the Agency has discretion to provide
employees with free parking as was done at the previous location.
B. Analysis
The Authority has held that proposals regarding the distribution of
parking spaces to employees in the bargaining unit are within the duty
to bargain if they are consistent with applicable laws, rules, and
regulations. American Federation of Government Employees, AFL-CIO,
Local 3525 and United States Department of Justice, Board of Immigration
Appeals, 10 FLRA 61, 66 (1982) (Union Proposal 2) (citing National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 747 (1980)). The regulation governing federal
employee parking is FPMR Temporary Regulation D-69 (Temp. Reg. D-69), 41
CFR Chapter 101 at Appendix to Subchapter D (superseding 41 CFR
101-20.111) (extending through March 31, 1987, 51 Fed. Reg. 11022
(1986)). The Authority has held that the FPMR applies to the federal
civilian work force as a whole and is, therefore, a Government-wide
regulation within the meaning of section 7117(a)(1) of the Statute.
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 747, 755 (1980). Consequently,
Temp. Reg. D-69 is a Government-wide regulation which would bar
negotiation on a conflicting union proposal.
As to whether Union Proposals 6 and 11 conflict with Temp. Reg. D-69,
the Agency contends that the Union does not dispute that the facilities
which the Agency occupies in Erie and Pittsburgh are within the control
of GSA. However, GSA control of the facilities does not leave the
Agency without discretion concerning employee parking. First, section 7
of the regulation provides that, while GSA is vested with the authority
to allocate parking spaces, GSA may delegate its authority to occupant
agencies "by mutual agreement." /2/ Further, section 8 of the regulation
provides that parking spaces not required for official needs may be used
for employee parking. /3/ Additionally, section 10(f) of Temp. Reg.
D-69 recognizes that implementation of the regulation "may require
negotiation . . . with recognized labor organizations."
The Authority therefore finds that an agency has discretion under
Temp. Reg. D-69 to either request that GSA delegate to the agency the
authority to allocate parking spaces in accordance with sections 7 and
8, or, if GSA does not agree to the delegation, request GSA to allocate
a designated number of spaces for employee parking. See IRS, New
Orleans District at 759-60. /4/ This discretion is not unlimited. One
limit on an agency's discretion is that GSA is not required to comply
with an agency's request. Additionally, contrary to the Union's
contention, an agency is without discretion under Temp. Reg. D-69 to
secure parking away from the GSA controlled facility without GSA having
delegated such authority to the agency.
The Agency's argument concerning national consultation rights under
section 7113 of the Statute is based upon the proposal's inconsistency
with Government-wide regulation. However, in light of our determination
that the proposal is not inconsistent with Temp. Reg. D-69, the
Authority rejects the Agency's contention.
C. Conclusion
As discussed above, to the extent that the Agency has discretion to
carry out the general requirement of proposals 6 and 11 by requesting
GSA to take appropriate action, they are within the duty to bargain.
VI. Union Proposal 14 (Pittsburgh)
Due to traffic problems and in accordance with Article 25,
Section 4, of the negotiated agreement, a pilot flexitime project
will be instituted in the Pittsburgh Area Office for all
bargaining unit employees.
A. Positions of the Parties
The Agency contends that Article 25 of the parties' Master Agreement
defines the standard work week for employees and is not subject to
bargaining under section 7106(b)(2) and (3) of the Statute absent a
management-initiated change or a reopener clause. The Agency also
argues that it has no obligation to bargain concerning matters over
which it has no control.
The Union contends that the proposal merely implements Article 25,
Section 4 of the parties' Master Agreement.
B. Analysis and Conclusion
As to any factual issues concerning the existence of an obligation to
bargain, see Wurtsmith Air Force Base discussed above with respect to
Union Proposals 1 and 2.
Union Proposal 14 would establish a pilot flexitime program in the
Agency's Pittsburgh office. The Authority has held as a general matter
that proposals concerning flexitime are within the duty to bargain. See
American Federation of Government Employees, AFL-CIO, Local 2875 and
Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, Southeast Fisheries Center, Miami
Laboratory, Florida, 5 FLRA 441 (1981). The Agency's argument that the
proposal concerns matters outside its control is unclear and the Agency
has provided no basis in the record for the Authority to respond to its
contention. Since the Agency has not alleged and it is not otherwide
apparent that the proposal is inconsistent with applicable law,
regulation, or the Statute, it is within the duty to bargain.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as to Union
Proposal 5 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 Proposals 1, 2, 6, 11, and 14. /5/
Issued, Washington, D.C., May 8, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
--------------- FOOTNOTES$ ---------------
(1) The Union withdrew one proposal involving the use of shower
facilities and did not appeal the Agency's declaration that a proposal
regarding the cost of printing employee business cards was
nonnegotiable. These proposals will not be considered further here.
The Union did not file a Reply Brief in this case.
(2) Section 7 of FPMR Temp. Reg. D-69 provides in relevant part:
7. Allocation and assignment of parking for official needs.
GSA has responsibility for ensuring the availability of parking
spaces for official needs. GSA may, by mutual agreement, delegate
allocation and assignment responsibilities to occupant agencies .
. . .
(3) Section 8 of FPMR Temp. Reg. D-69 provides in relevant part:
8. Allocation and assignment of employee parking spaces.
a. Parking spaces not required for official needs may be used
for employee parking.
b. GSA (or other agencies having assignment responsibilities)
will determine the total number of spaces available for employee
parking.
(4) In IRS, New Orleans District, the Authority held that an agency
is without discretion to provide parking for its employees free of
charge in that FPMR Temporary Regulation D-65, a Government-wide
regulation, required employees to be charged for the use of
government-controlled parking. However, that regulation is no longer in
effect. Under Temp. Reg. D-69, which currently governs federal employee
parking, an agency is no longer required by Government-wide regulation
to assess a charge for the use by its employees of government-controlled
parking facilities.
(5) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.