[ v25 p979 ]
25:0979(82)NG
The decision of the Authority follows:
25 FLRA No. 82
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Union
and
DEPARTMENT OF LABOR
Agency
Case No. 0-NG-776
17 FLRA 674
DECISION AND ORDER ON REMAND /1/
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question involved is whether a Union proposal concerning the
location of office space is within the duty to bargain under the Federal
Service Labor-Management Relations Statute (the Statute).
II. Background
In a previous decision in this case, American Federation of
Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
674 (1985), the Authority held, as relevant here, that two sections of a
Union proposal concerning the location of office space (Union Proposal
6, sections d and g) were outside the duty to bargain because they would
directly determine conditions of employment for non-unit employees. That
proposal provides:
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.
. . . . . . .
g. Window areas will not be blocked by private offices and
high partitions.
. . . . . . .
The Union appealed the Authority's decision concerning proposal 6(d)
and (g) to the United States Court of Appeals for the District of
Columbia Circuit. Local 12, American Federation of Government Employees
v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985).
While that appeal was pending, the D.C. Circuit issued its decision
in Local 32, American Federation of Government Employees v. FLRA, 774
F.2d 498 (D.C. Cir. 1985), remanding the Authority's orders in two cases
involving a related issue. /2/ In each of those cases, the Authority
had held that a proposal seeking to define a competitive area within the
Agency for purposes of a reduction-in-force (RIF) was outside the duty
to bargain because in each instance it would directly determine
conditions of employment of employees not within the bargaining unit.
The D.C. Circuit's remand directed the Authority to address and resolve
what the Court described as an apparent inconsistency between the
Authority's findings in those cases and its finding in Association of
Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
and Air National Guard, 14 FLRA 38 (1984) that a proposed competitive
area was within the duty to bargain.
Thereafter, the Authority filed a motion for remand of this case so
that it could further consider the issue presented in light of the
Court's decision in Local 32, AFGE v. FLRA, referred to above, and in
light of the Authority's consideration of the cases remanded by that
decision. The Court granted that motion. Local 12, American Federation
of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986).
III. Analysis
In its Decision and Order on Remand in the Office of Personnel
Management case referred to above, the Authority discussed the factors
to be addressed in determining the negotiability of proposals which
affect the conditions of employment of unit and non-unit employees.
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 22 FLRA No. 49 (1986), petition for
review filed sub nom. American Federation of Government Employees Local
32 v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). The Authority stated
that it would balance the right of the union to negotiate over the
conditions of employment of bargaining unit employees and the right of
the agency to set the conditions of employment of nonbargaining unit
employees. It also stated:
In weighing the parties' respective rights, we will determine
whether the nature and degree of the impact of the proposal is so
intrinsically related to the working conditions of nonunit
employees so as to invade the purview of other unit
representatives or require the agency to act in a way that will
have a significant effect on the rights of employees not
represented by the union offering the disputed proposal. In such
a case, management is not required to bargain. However, where the
proposal has only a limited or indirect effect on the interests of
employees outside the bargaining unit it will be subject to
appropriate negotiations.
The disputed proposals in this case involve the location of office
space. The Authority has found that proposals concerning reductions in
space, space allocation, and the arrangement of space concern conditions
of employment and are negotiable unless an agency demonstrates that the
proposals are inconsistent with applicable law or regulation. See, for
example, American Federation of Government Employees, AFL-CIO, Local 12
and Department of Labor, 21 FLRA No. 129 (1986). The Agency asserts
that the proposals are nonnegotiable because they are "addressed to the
space of non-bargaining unit employees." Agency Response at 7. The
Employer also states that "(e)ven if the space . . . involved bargaining
unit employees," the proposals are bargainable only at its election
because they conflict with its right to determine the technology,
methods, and means of performing work under section 7106(b)(1) of the
Statute. Agency Response at 8. We are unable to sustain the Agency's
contentions and, accordingly, we reverse the Authority's previous
decision in this case concerning Proposal 6(d) and (g).
The Union maintains that the proposals relate only to the space to be
occupied by unit employees. It also asserts that some private offices
are occupied by unit employees. Union Response at 8. It states that it
did not intend "to negotiate over the office space of non-unit
personnel." Union Response at 9. The plain language of the proposals,
however, encompasses all private offices and a fair reading of the
proposals indicates that the proscriptions contained in them concerning
private offices would apply to both unit and non-unit employees. An
analysis of the proposals in light of the Decision and Order on Remand
in Office of Personnel Management, therefore, is necessary.
In Office of Personnel Management, the proposal in dispute involved
the competitive areas to be used in determining retention rights in a
reduction in force. By operation of applicable Government-wide
regulations in that case, the negotiations over competitive areas for
bargaining unit employees would necessarily determine the competitive
areas of non-unit employees. Thus, the effect on the conditions of
employment of non-unit employees was significant and direct. Moreover,
the interests of the non-unit employees affected by the proposal
concerned whether and in what position an employee would be retained in
the Federal service. These are vital interests.
By contrast, the proposals in this case concern the location of
office space, specifically whether private offices would be located
adjacent to windows. Although employees have legitimate interests in
the location of their office space, these interests are in no way as
vital as their interests in continued employment. Further, the Agency
offers no information concerning the numbers of non-unit employees who
could be affected by the proposals, and it does not dispute the Union's
assertion that some of the private offices are occupied by bargaining
unit employees. Thus, we have no basis for concluding that negotiations
over the proposals would have direct and significant effects on non-unit
employees. In fact, consistent with the Union's stated intent,
negotiations over the proposals could be limited to the office space
occupied by bargaining unit employees only.
In sum, we conclude under the analytical framework set forth in
Office of Personnel Management, that the Union's proposals in this case
are not so intrinsically related to the working conditions of non-unit
employees so as to make them nonnegotiable.
The Agency also asserts that the proposals would interfere with its
rights to determine the technology, methods, and means of accomplishing
its work. In order to support such an assertion, the Agency must
demonstrate both that its choice of office space design has a
technological relationship to accomplishing its work and that the
Union's proposals would interfere with the purpose for which the office
space design was adopted. See American Federation of State, County, and
Municipal Employees, AFL-CIO, Local 2477 and Library of Congress,
Washington, D.C. 7 FLRA 578 (1982). In this case, the Agency offers no
support whatever for its assertion. Accordingly, we conclude that the
proposals would not interfere with the Agency's rights under section
7106(b)(1) so as to be bargainable at the election of the Agency only.
IV. Conclusion
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 6(d) and (g). /3/
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Member Frazier's separate opinion begins on page 6.
(2) The two cases remanded by the Court were American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 14 FLRA 754 (1984) (Local 32) and National Federation of
Federal Employees, Local 29 and Department of the Army, U.S. Army Corps
of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75
(1984).
(3) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.
Member Frazier, concurring in part and dissenting in part:
The proposals in this case concern office space. To the extent that
the proposals deal only with office space currently allocated to unit
employees, I would find the proposals negotiable. However, I must
respectfully dissent from the determination of my colleagues that these
proposals, to the extent that they deal with office space currently
allocated to non-unit employees, are negotiable as well. Such a
determination is not justified by the language of the proposals or the
contentions of the parties. In addition, the test adopted by my
colleagues in reaching their conclusion departs from Authority precedent
and relies upon a consideration that injects a new and unwarranted
element into the analysis of these sorts of proposals.
The proposals state that:
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.
g. Window areas will not be blocked by private offices and
high partitions.
The parties view these proposals somewhat differently. The Agency
adverts to the undisputed fact that certain offices subject to the
proposals are occupied by nonbargaining unit employees. The Union, in
contrast, contends that the proposals "refer only to space to be used by
bargaining unit employees." However, both parties agree that the private
office space referred to in the proposals does include some office space
occupied by non-unit employees.
Neither the plain language of the proposals nor the submissions of
the parties conclusively establishes the intended effect of the
proposals. It is thus unclear, based on this record, whether and to
what extent the proposals affect the working conditions of non-unit
employees.
To the extent that the proposals are intended to affect only (a)
office space currently occupied by unit employees or (b) unoccupied
office space which is equivalent to that currently occupied by unit
personnel in the inner and outer areas (an interpretation rejected by my
two colleagues in the Authority's opinion in this case), I would find
the proposals negotiable. Consistent with this understanding of the
proposals, the only office space with which the proposals would be
concerned would be space identical or equivalent to that currently
occupied by unit employees. To hold the proposals, thus understood, to
be negotiable would be fully consistent with established Authority
precedent. Under this interpretation, the proposals, dealing only with
office space currently allocated to unit employees, would have at most
only a limited or indirect effect on the interests of employees outside
the unit. See American Federation of Government Employees, Local 32,
AFL-CIO and Office of Personnel Management, 22 FLRA No. 49, slip op. at
5 (1986).
If however, one interprets the proposals as do my colleagues, a
contrary result is required. Under this interpretation, the proposals
are intended to apply to all office space in the area where unit
employees are situated. This would include office space occupied by
non-unit personnel. The Union would thus be seeking to determine, as a
direct consequence of the proposals, working conditions of certain
non-unit employees along with those of employees in the unit. Such a
proposal, "so intrinsically related to the working conditions of
non-unit employees so as to directly determine and prescribe their
conditions of employment," is not within the duty to bargain under
established Authority precedent. Id., slip op. at 7.
My colleagues avoid the result required by OPM through application of
the novel concept of "vital interests." They appear to reason that OPM,
which concerned the determination of competitive areas for reduction in
force purposes, involved "vital interests," whereas the instant case
involves interests which "are in no way as vital." I cannot agree with
this rationale.
The concept of "vital interests" has never been part of the test to
determine whether proposals which affect both unit and non-unit
personnel are within the duty to bargain. Further, the quantitative
classification of interests suggested by the majority's test does not
find any support in the Statute. To the contrary, in any particular
bargaining situation the Statute recognizes only the rights of the
particular exclusive representative to bargain on matters affecting the
working conditions of unit employees. The Statute also recognizes the
independent rights of "non-unit" personnel.
Generally speaking, "non-unit personnel" can include various groups
of employees, including personnel who have chosen to be represented by
another union, personnel who have chosen not to be represented, and
personnel excluded by the Statute from any representation. Consistent
with these distinctions, the Authority has heretofore limited an
agency's duty to bargain with a union to proposals whose direct effects
are restricted to employees in the unit for which the union is
bargaining.
The majority's decision in this case alters this principle.
Application of the majority's "vital interests" test effectively
empowers unions to directly negotiate "non-vital" conditions of
employment for employees other than those for whom they are the elected
representatives, including possibly employees represented by a different
labor organization. As to this latter class of employees, the "vital
interests" test establishes a bargaining preference concerning so-called
"non-tival" conditions of employment for whichever bargaining unit first
comes forward with a proposal affecting those matters. Such results do
not honor the requirement of section 7102 of the Statute that employees
be protected in their right "to engage in collective bargaining with
respect to conditions of employment through representatives chosen by
(them)," or to refrain from such activity.
Apart from the problems discussed above, the "vital interests" test
leads to anomalous results. For example, if a union proposal similar to
that at issue in the instant case were intended to include all space in
the agency (e.g. as here, the Department of Labor), it could directly
affect office space occupied by not only the employees represented by
the union, but those who may be unrepresented, including office space
allocated to those who are excluded by the Statute from any
representation. This would include the Secretary, the Under Secretary,
Assistant Secretaries, and all other management officials and
supervisors. In my view a test which the Authority applies to
distinguish proposals that fall within the duty to bargain from those
which do not should be more discriminating.
Accordingly, for the reasons set forth above, I respectfully dissent
to the extent that my colleagues' decision extends to office space
currently allocated to non-unit employees.
Issued, Washington, D.C., February 27, 1987.
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY