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37:0249(17)NG
The decision of the Authority follows:
37 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2024
(Union)
and
U.S. DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
(Agency)
0-NG-1570
DECISION AND ORDER ON NEGOTIABILITY ISSUES
September 17, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns three Union proposals pertaining to annual leave, reduction-in-force (RIF), and placement of medically restricted employees.(1)
We find that Proposal 1, which requires the approval of requests for annual leave in some circumstances, is outside the duty to bargain because it directly interferes with management's right to assign work and is not an appropriate arrangement under section 7106(b)(3) of the Statute. We find further that Proposal 3 and Proposal 5, respectively, concerned with minimizing the displacement of employees during a RIF, and the placement of medically restricted employees, directly interfere with management's rights but, nevertheless, are negotiable as appropriate arrangements because they do not excessively interfere with such rights.
II. Proposal 1
Article 14, Annual Leave, Section 5
Annual leave will be granted upon request for the reasons set forth below. The only exceptions to approving such requests shall be limited to situations where the absence of the employee would prohibit the Employer from accomplishing a critical job.
a. A religious holiday associated with the religious faith of the employee.
b. In case of death in the immediate family. Immediate family means spouse, children, parents, brother, sister, mother-in-law, or father-in-law.
c. When the employee is a delegate to a labor organization convention, or a Union meeting.
A. Positions of the Parties
The Agency contends that the proposal violates management's right to assign work under section 7106(a)(2)(B) because it would require granting an employee's request for annual leave for certain purposes unless the Agency thereby would be prevented from accomplishing a "critical job." The Agency argues that the proposal, therefore, would deprive management of discretion to deny an employee's request for leave unless a "critical job" needed to be accomplished.
The Union disputes the Agency's contention that the proposal conflicts with management's right to assign work. Rather, the Union contends that the proposal constitutes a procedure to be used in granting annual leave for religious observances and for gravely serious personal reasons. The Union maintains that the proposal makes provision for exceptions for important work under the term "critical job." Also, the Union asserts that the intent of the proposal is to allow the leave-approving official the right to deny leave where it is determined that the disruption to the work schedule or the importance of the work production does not allow for the absence of an employee. Finally, the Union argues that, even if the proposal interferes with management's right to assign work, it does not interfere excessively and, therefore, is an appropriate arrangement under section 7106(b)(3).
B. Analysis and Conclusions
The Agency states that Proposal 1 "deprives the agency of any discretion to deny an employee's request for leave" unless a "critical job" must be accomplished. Statement of Position at 2. It argues that Proposal 1, therefore, is to the same effect as a provision that the Authority held nonnegotiable in American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Provision 5) (Fort Rucker) because it required the agency to grant annual leave unless there were "compelling workload requirements." The Authority found that the provision prevented management from assigning work to an employee during the period covered by a request for leave, even if management needed the employee's services, for other than "compelling workload requirements."
The Union responds that it intends the word "critical" in Proposal 1 to have the dictionary meaning of "essential." Union Response at 6. It argues that Proposal 1, as intended to be applied, is distinguishable from the provision in Fort Rucker because the term "critical job" is meant to be sufficiently broad to preserve management's discretion to deny a request for leave anytime that "the requesting employee must be present for a particular job." Id. at 9. It further explains in this regard that a "critical job" could be a routine job that "must be done at a certain time" as well as a job that is "critical [in] nature." Id. at 7. Summarizing the intended meaning of the proposal as a whole, the Union states that "the proposal means that only where there is no immediate need for a particular employee during a period of time covered by a leave request, would there be any obligation to grant leave." Id.
We think that the Union fails to distinguish Proposal 1 from the proposal held nonnegotiable in Fort Rucker because the Union's statement as to the overall meaning of Proposal 1 is not consistent with the meaning the Union gives to the particular term "critical job." That is, while the Union intends that a "critical" job under the proposal would be an "essential" job, it nevertheless interprets the proposal as a whole to require management to grant a leave request only where there is "no immediate need for a particular employee" during the requested leave period. Using the ordinary meaning of the words, an "essential" job is an "indispensable" job. Webster's New World Dictionary, Third College Ed. (1988) at 463-65. In contrast, merely having a "need" for a particular employee could, but does not always, connote indispensability. Id. Thus, we reject the Union's interpretation of the proposal as a whole because it is less restrictive than and, therefore, inconsistent with its correct interpretation of the plain wording of the proposal. National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA 26, 28 (1990) (BATF) (the Authority will not adopt a union's interpretation that is inconsistent with the wording of the proposal, but will base its decision on an interpretation that is consistent with the plain wording of the proposal). Rather, we find that under Proposal 1, management could require an employee to perform a particular job during a period for which leave had been requested only if management determined the job was indispensable. The imposition of this substantive criterion on management's ability to assign work directly interferes with its right to make such assignments under section 7106(a)(2)(B) of the Statute. Fort Rucker, 28 FLRA at 1177.
Because Proposal 1 directly interferes with management's right to assign work, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1454, and Veterans Administration, 26 FLRA 848, 852 (1987).
We now turn to the Union's contention that Proposal 1 is negotiable as an appropriate arrangement for employees adversely affected by the exercise of management's right to assign work. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). Insofar as appears from the record, the Union intends this proposal to mitigate adverse effects on an employee who has requested annual leave to observe religious holidays or "for gravely serious personal reasons," when management denies the request so that it can assign work to the employee during the period. Union response at 3. While the record does not show that an employee would necessarily be "adversely affected," within the meaning of section 7106(b)(3), in the circumstances covered by the proposal, we will assume for the purposes of this decision that the proposal is an "arrangement" within the meaning of section 7106(b)(3). Therefore, we will balance the respective interests of the Agency and the employees to determine whether the proposed arrangement excessively interferes with the Agency's right to assign work. Id. at 31-33.
The proposal would require the Agency to grant an employee's request for annual leave in the circumstances set forth in the proposal except if the "absence of the employee would prohibit the Employer from accomplishing a critical job." The proposal thereby would establish a single, very strict criterion that would be determinative of whether management could exercise its right to assign work in the face of a leave request falling under this proposal. The express wording of the proposal allows denial only for "accomplishing a critical job." As previously indicated, the Union's statement that the proposal is intended to allow management to exercise discretion in deciding whether to approve leave requests is inconsistent with the wording of the proposal and is not persuasive.
The extent to which the denial by management of an employee's request for leave, as would be covered under the proposal, would adversely effect the employee would depend on the particular employee's circumstances. The effect could be significant in some cases and minimal in others. The proposal, however, does not take account of such inevitable variations and would uniformly apply the proposal's stringent restriction of the Agency's ability to assign work in all instances, even if the adverse effects on the employee were, in fact, minimal. On balance, we find that the Union has not shown that this proposal necessarily would benefit employees to an extent that would outweigh the proposal's negative impact on the Agency's right to assign work. Therefore, we find that Proposal 1 excessively interferes with management's right to assign work and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). Consequently, it is nonnegotiable.
III. Proposal 3
Article 26, Reduction in Force, Section 7
The Employer shall minimize displacement actions incurred by a reduction in force to the extent possible through reassignment, restricting the filling of all vacancies for which employees affected by the reduction in force may qualify by outside hiring or promotion, waiving qualifications and standards for employees affected by the reduction in force and other actions that may be taken to retain career employees.
A. Positions of the Parties
The Agency asserts that Proposal 3 would interfere with management's rights to assign employees, assign work and make selections from any appropriate source under sections 7106(a)(2)(A), (B) and (C) of the Statute.
In particular, the Agency argues that Proposal 3 would interfere with the right to select from any appropriate source under section 7106(a)(2)(C) by requiring the Agency "to the extent possible" to minimize displacement actions through reassignment, restricting the filling of positions by outside hiring or promotion, and by waiving qualification standards.
Additionally, the Agency argues that the proposal would interfere with management's right to assign employees to positions under section 7106(a)(2)(A) because it would require that management reassign particular employees to vacancies. The Agency asserts that, for example, the proposal would prevent management from filling vacancies with internal candidates from organizational elements unaffected by a RIF and, thereby, would limit the field of employees eligible for assignment to vacancies.
The Agency argues that, in view of the Union's interpretation of the proposal as requiring "the waiving of qualifications so employees could be retrained," the proposal constitutes an assignment of work. Agency statement of position at 4. The Agency maintains that the imposition of a training requirement interferes with the Agency's right to assign work under section 7106(a)(2)(B) because it would deny management the services of a fully qualified employee because of its obligation to train employees.
Further, the Agency maintains that the use of the phrase "to the extent possible" does not limit the substantive interference of the proposal with management's rights.
The Agency argues that the proposal does not constitute an "appropriate arrangement" under section 7106(b)(3) because the proposal does not preserve the Agency's discretion to decide whether to fill vacant positions and consider factors such as impact on the effectiveness and efficiency of the Agency's operations.
The Union concedes that Proposal 3 is "apparently in conflict with § 7106(a) of the Statute" but argues that the proposal is an appropriate arrangement under section 7106(b)(3) for employees adversely affected by management's decision to displace employees through a RIF. Union response at 11. The Union maintains that the proposal would require action only to the extent "possible under the circumstances of accomplishing the overall purpose of the reduction in force" and would apply only where management had previously decided to fill a position. Id. at 4. Further, the Union indicates that the proposed requirement to waive qualifications for reassignments and promotions is intended to apply to employees whose abilities would allow them to be retrained to become minimally qualified in newly assigned duties within about 90 days. Consequently, the Union argues that the proposal does not excessively interfere with management's rights.
B. Analysis and Conclusions
The proposal would require the Agency to minimize displacement actions in a RIF to the extent possible through the reassignment of, and the filling of vacancies with, employees affected by the RIF. The proposal also would require the Agency to waive qualifications and standards for some of those employees. Inasmuch as the Union concedes without argument that the proposal directly interferes with management's rights under section 7106(a) of the Statute, for the purposes of our decision we will assume, without deciding, that the proposal directly interferes with management's rights, as alleged by the Agency, to assign employees to positions under section 7106(a)(2)(A), to assign work under section 7106(a)(2)(B), and to make selections for positions under section 7106(a)(2)(C). Compare, for example, American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 41-45 (1987) (AFGE Local 2635) (similar provision held to directly interfere with management's rights under section 7106(a)(2)(C) of the Statute).
Turning now to the Union's principle contention, we find that Proposal 3 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's rights.
The Union states in this connection that the proposal is intended to reduce the adverse impact of management's decision to displace employees through a RIF. The adverse effect of a RIF action on employees is clear. See, for example, International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 358 (1988). Therefore, we find that the proposal constitutes an "arrangement" for employees adversely affected by the exercise of management rights. Kansas Army National Guard, 21 FLRA at 31.
The remaining question is whether the arrangement required by Proposal 3 is "appropriate" or whether it is not appropriate because it excessively interferes with management's rights. The Authority has found that proposals providing for management to fill vacancies with employees who have lost, or are threatened with the loss of, their jobs due to a RIF or technological changes constituted appropriate arrangements where the proposals applied only after management decided to fill a position and did not require the agency to assign an unqualified employee. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1035-38 (1988) (NWS, Concord), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989); AFGE Local 2635, 30 FLRA at 43. The Authority has concluded that, on balance, the limitations placed by such proposals on management's right to select from any appropriate source when filling vacant positions do not excessively interfere with management's right under section 7106(a)(2)(C). Id. In NWS, Concord the Authority also found that a provision requiring training for employees whose jobs were eliminated and who possessed the ability to benefit from training was an appropriate arrangement under section 7106(b)(3), as long as the provision preserved management's discretion to determine the extent and type of training, the number of employees to be trained given available funding and training authority, and the methods and means by which training would be accomplished. 32 FLRA at 1035-38.
In assessing the impact of Proposal 3 on management's rights we must construe the phrase "to the extent possible." As we cannot ascertain the meaning of that phrase from the plain wording of the proposal, we refer for explanation to the Union's detailed statement as to what the words are intended to mean. The Union states that it does not intend the proposal to be applied rigidly and, therefore, the phrase "to the extent possible" is used in recognition of the fact that the actions to be taken by management described in the proposal would not always be reasonable or feasible. Union response at 4. As to the precise meaning of the phrase, the Union states that it is intended to mean "possible under the circumstances of accomplishing the overall purpose of the reduction in force[.]" Id. The Union concludes, in this regard, that the phrase is intended to connote that the proposal would apply only if management decided to fill a position.
The Union states, further, that the phrase is intended to reflect an understanding that the proposal would only apply subject to "normal considerations" such as determinations regarding the capabilities of employees and the qualifications required to perform particular jobs or the need of management to fill a job that could not be filled by one of the affected employees. Id. at 4-5. Insofar as the proposal would require "waiving qualifications and standards" the Union states that the proposal contemplates "case-by-case examination to determine . . . if an employee's general abilities allow the waiving of qualifications so that the employee could be retrained in a short period of time." Id. at 5. We find that this comprehensive statement of the Union's intent regarding the meaning of the phrase "to the extent possible" is consistent with the more generally worded proposal and we adopt it for purposes of this decision. See BATF, 35 FLRA at 28.
Based on the foregoing, we construe Proposal 3 to apply only after management decides to fill a vacant position. Insofar as it would require a waiver of qualifications such a waiver would be of only temporary duration and only for employees whose abilities allowed them to become at least minimally qualified through training in a short period. As explained by the Union, Proposal 3 encompasses an overriding intent to ensure that the purpose of a RIF can be accomplished and, consequently, for management to retain the discretion to exercise its rights as necessary to attain that end. Only if management were to decide to fill a particular vacant position would it be necessary to address the actions specified in the proposal to mitigate the adverse impact on employees by filling the position from among those affected by the RIF. The proposal then would apply to filling the position, subject to normal management considerations such as making qualifications determinations or having a need to fill a job from outside the group of employees affected by the RIF.
Interpreted in this manner, Proposal 3 would have the same effect as the provisions found to be appropriate arrangements in NWS, Concord and AFGE Local 2635 because they did not excessively interfere with management's rights. Those provisions obligated management to make a reasonable effort to reassign employees, whose positions were eliminated, to vacant positions that management decided to fill and to train employees who had the aptitude for vacant positions and reassign them to those positions when they were trained. Proposal 3, by requiring management to attempt to minimize displacement actions in a RIF to the extent possible by filling vacant positions, which it decides to fill, from among qualified employees, or those who through training could quickly become qualified, similarly does not excessively interfere with management's rights and is an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, the proposal is within the duty to bargain.
IV. Proposal 5
Article 41, Placement of Medically Restricted Employees, Section 6
When the Employer determines that an employee is physically disabled for service in his/her current position, every effort will be made to place the employee in a position at the same grade or pay or, if practicable, to waive qualification standards to allow entry into a closely-related occupation which the employee is physically able to perform at the same grade and pay.
A. Positions of the Parties
According to the Agency, the proposal would require it to make "every effort" to place an employee, whom it determines is physically incapable of performing the duties of his or her current position, in a position at the same grade and pay which he or she can perform and, if practicable, to waive qualification requirements in the course of making such assignments. Consequently, the Agency argues that the proposal directly and excessively interferes with the rights reserved to the Agency by section 7106(a)(2)(A) and (B) to assign employees and work.
Further, the Agency asserts that the proposal is not an appropriate arrangement for employees adversely affected by the exercise of management rights. First, the Agency argues that the proposal is not intended to be an appropriate arrangement because the Union has identified no adverse effects on employees arising from the exercise of management rights and there is no indication in the proposal that the disability in question in any way stems from the exercise of management rights. Further, even if the Authority should conclude that the intent of the proposal is to ameliorate the adverse effects of an exercise of management rights, the Agency asserts that no such effects are reasonably foreseeable. The Agency argues that the proposal, at best, seeks to prevent the possibility of speculative adverse impacts. Finally, the Agency asserts that, if the proposal is an arrangement, it is not an appropriate arrangement because, as well as requiring the Agency to assign employees to positions for which they are qualified, it also would require the Agency to waive qualifications when practicable and assign employees to perform work that they might not be qualified to perform. Thus, the Agency asserts that the proposal does not preserve Agency discretion to determine the qualifications to be required of employees to perform the assignments at issue. Accordingly, the Agency maintains that the proposal is not an appropriate arrangement under section 7106(b)(3).
The Union maintains that Proposal 5 does not mandate assignment of an employee who has been physically disqualified from performing the duties of his or her job. It requires only that the Agency make "every effort" to find a job for which the employee is fully qualified and that in the absence of such a job, where "practicable," waive the strict qualification requirements for an employee who is able to do the work. Further, the Union argues that, if the proposal infringes on a management right, it is nevertheless negotiable as an appropriate arrangement. The Union argues that the proposal would apply only after management exercises its right to determine qualifications, in this case physical requirements, of a given job. If that exercise of management's right results in a determination that an employee is physically disqualified from performing his or her job, it likely would result in removal of the employee from that position. The proposal seeks to have the employer attempt to match up the employee's abilities with work that is available and place the disabled employee in that work without loss of pay or, if that is not possible, to allow the employee to demonstrate his or her ability to perform in another similar job.
B. Analysis and Conclusions
Proposal 5 would apply if the Agency were to find an employee physically unable to perform the duties of the employee's job. It requires the Agency to make "every effort" to place the employee in a different position at the same pay and grade level or, if there is no job available for which the employee is fully qualified, if practicable, waive qualification standards and place the employee in a "closely related occupation."
This proposal is virtually identical to Provision 2 which was before us in International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 36-40 (1990) (IFPTE). In that case, the same agency as is involved in the present case raised essentially the same arguments as are now before us. We found that the provision directly interfered with management's rights to assign employees and assign work, notwithstanding its use of the qualifying phrase to make "every effort," because it required the agency to assign an employee to a position or to assign work to an employee. Id. at 37-8. Inasmuch as the provision directly interfered with management's rights, we also found that the provision did not constitute a negotiable procedure under section 7106(b)(2) of the Statute. Id. at 38.
We found further, however, that the provision was an appropriate arrangement under section 7106(b)(3). First, we ruled that the provision constituted an arrangement for employees adversely affected by management's right to assign employees within the meaning of section 7106(b)(3) because a determination by management that an employee is physically unqualified to perform his or her job adversely affects the employee. Id. at 38-9.
Next, we balanced the respective interests of management and employees and concluded that the impact of the proposed arrangement on management's right to assign employees was not excessive. In reaching our conclusion we found that the provision did not prohibit, require, or limit the assignment of any type of work or particular duties to the employees involved, and left all qualifications determinations to management. We further noted that the provision comported with Federal policy requiring agencies to make reasonable accommodations to the physical limitations of employees under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. and the pertinent implementing regulation found at 29 C.F.R. § 1613.704. Consequently, we found that the impact on management's rights was limited and the benefit to disabled employees of continuing employment at the same pay and grade levels was extremely significant. Therefore, we concluded that the provision did not excessively interfere with the agency's management rights and that the provision was an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
In the present case, the Union states the following with regard to the intended meaning of Proposal 5:
The proposal does not require the employer to displace any employees; it does not require the creation of positions; it does not require less-than-capable performance in the position assigned (if found). It merely asks that the employer diligently try to reassign the employee, and then, failing that, asks that technical hurdles be set aside by waiving paper qualifications where the employee can actually do the work satisfactorily.
Union's response at 14 and 15.
Based on the record in this case, and for the reasons more fully set forth in IFPTE, we find that although Proposal 5 interferes with management's rights to assign employees and work, the impact of the proposed arrangement on management's rights is not excessive. We reject the Agency's claim that the Union has not identified adverse effects on employees arising from the exercise of management rights. The Union argues, in this connection, that Proposal 5 constitutes an appropriate arrangement under section 7106(b)(3) for employees who, as the result of management's finding them to be physically disqualified, are likely to be removed from their positions. A determination of an employee's qualifications for a position is a part of management's right to assign employees under section 7106(a)(2)(A) of the Statute. Id. at 38. A determination by management that an employee no longer is physically qualified to perform his or her job adversely affects that employee. Id. at 38-9. See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA No. 81, slip op. at 7 (Aug. 24, 1990) (provision that seeks to eliminate possible adverse effects is properly considered as an appropriate arrangement, overruling, on that point, American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (1988)). Therefore, we find that Proposal 5 constitutes an "arrangement" for employees adversely affected by the exercise of management's right to assign employees.
Proposal 5 neither mandates nor precludes the assignment of any type of work or particular duties to the employees involved. Even though Proposal 5 requires management to make efforts to provide a way for a unit employee, whom management determines is physically disabled for service in his or her current position, to continue to work, the proposal does not limit the jobs or duties that management can assign. Furthermore, although the Union does not explicitly state it here, as the union did in IFPTE, we find the understanding that all determinations regarding disability and qualifications for particular positions will be made by the Agency to be implicit in the proposal, as worded and explained by the Union. Moreover, this proposal comports with the Federal policy requiring agencies to make reasonable accommodations to the physical limitations of their employees under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. and the pertinent implementing regulation found at 29 C.F.R. § 1613.704. See, for example, American Federation of Government Employees, Local 12 and U.S. Department of Labor, 24 FLRA 139 (1986)(arbitrator's award directing the agency to restructure a clerical position to accommodate an employee's physical limitations properly reflected its duty under the Rehabilitation Act and implementing regulations to accommodate an employee's physical limitations). Consequently, we find that the degree of interference with the Agency's rights to assign work and employees is limited. See National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1050 (1987).
Balancing the respective interests of management and employees, we find that the impact on management's rights is limited and the benefit to disabled employees of continuing employment at the same pay and grade levels is extremely significant. Therefore, we find that the proposal does not excessively interfere with the Agency's management rights. Id. Accordingly, we find that the arrangement is "appropriate" and that Proposal 5 is a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute.
V. Order
The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposal 3 and Proposal 5.(2) The petition for review is dismissed insofar as it concerns Proposal 1.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Union's appeal concerned 2 additional proposals. The Union withdrew Proposal 2. The Agency asserted in its statement of position that it did not allege that Proposal 4 is nonnegotiable. Therefore, we will not rule on the negotiability of those proposals.
2. In finding Proposals 3 and 5 are within the duty to bargain, we make no findings as to their merits.