74 FLRA No. 26

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 0906
(Union)

 

and

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

EASTERN KANSAS HEALTH CARE SYSTEM

TOPEKA VA MEDICAL CENTER

TOPEKA, KANSAS

(Agency)

 

0‑NG‑3645

 

_____

 

DECISION AND ORDER

ON A NEGOTIABILITY ISSUE

 

December 17, 2024

 

_____

 

Before the Authority:  Susan Tsui Grundmann, Chairman, and Colleen Duffy Kiko and Anne Wagner, Members

(Member Kiko dissenting)

 

I.               Statement of the Case

 

This matter 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).[1]  The dispute concerns one proposal that would require the Agency to either (1) install and maintain, in an employee break room, a new water-filtration system that includes a hands-free ice‑dispensing component, or (2) supplement an existing water‑filtration system with a machine that provides hands‑free ice dispensing.

 

For the following reasons, we find the proposal concerns bargaining-unit employees’ conditions of employment.  In so finding, we:  (1) reaffirm the test, set forth in Antilles Consolidated Education Ass’n (Antilles),[2] for assessing whether a matter concerns bargaining-unit employees’ conditions of employment; and (2) reverse U.S. DHS, U.S. CBP, El Paso, Texas (El Paso III)[3] and its progeny, to the extent those decisions conflict with this decision.  We also find the Agency has not demonstrated the proposal is:  contrary to a government-wide regulation; outside the duty to bargain on the ground that the Agency allegedly has not changed conditions of employment; contrary to management’s rights under § 7106 of the Federal Service Labor-Management Relations Statute (the Statute); or contrary to an Agency-wide regulation for which there is a compelling need.  Therefore, we conclude the Agency has not demonstrated the proposal is outside the duty to bargain.

 

II.             Background

 

The Union asked the Agency to address a lack of access to drinking water for bargaining-unit employees in the Agency’s mental-health clinic, which is a locked, controlled-access, outpatient mental-health clinic.  Specifically, the Union sought the installation of an ice and water machine in the employee break room.  After attempts to informally resolve the issue were unsuccessful, the Union submitted a formal demand to bargain.  The parties requested assistance from the Federal Service Impasses Panel (FSIP) with mediation.  In the meantime, the Agency installed a reverse-osmosis water filter in the employee break room, but no mechanism that provides ice.  When mediation failed, the parties requested further FSIP assistance.  The Agency subsequently asserted the issue was nonnegotiable, so FSIP dismissed the parties’ dispute for lack of jurisdiction.  The Union then filed this petition for review (petition) with the Authority.

 

Subsequently, an Authority representative conducted a post-petition conference with the parties under § 2424.23 of the Authority’s Regulations.[4]  The Agency filed a statement-of-position form (statement), and separately filed a statement-of-position brief (statement brief) the same day.  The Union filed a response to the statement and statement brief.[5]  The Agency did not file a reply to the response.

 

III.         The Proposal

 

               A.        Wording

 

Eastern Kansas Health Care System‑Topeka VAMC shall expeditiously obtain, install, and maintain a filtered-water and ice‑machine for the Mental Health Clinic employee break room, Bldg. 2, Room B132.  In light of the agency’s recent installation of a reverse-osmosis water filtration and dispensing system in B2/B132, the agency shall in the alternative, and in addition to the current RO system, obtain, install, and maintain a refrigerator-freezer in B2/B132 which contains an operating filtered ice‑dispensing feature in the external side of the refrigerator‑freezer door.[6]

 

              B.        Meaning

 

The parties agreed the proposal would require the Agency to either install a new water-filtration system that includes a hands-free ice‑dispensing component, or supplement the current reverse-osmosis water-filtration system with a machine that provides hands‑free ice dispensing.[7]  The parties clarified that “expeditiously” does not refer to a set amount of time, but rather means “without any undue delay, taking into account any outside issues that might delay receipt of the desired ice and water machine, like supply-chain disruptions.”[8] 

 

              C.       Analysis and Conclusions

 

The Agency argues the proposal is outside the duty to bargain for five reasons, which we discuss separately below.

 

1.           The Agency does not support its assertion that the proposal is contrary to a government-wide regulation.

 

The Agency asserts the proposal is contrary to a government-wide regulation.[9]  However, the Agency does not cite to a government-wide regulation or provide any arguments beyond this mere assertion.  The Authority’s Regulations applicable in this case provide that an agency “has the burden of raising and supporting arguments that the proposal . . . is outside the duty to bargain or contrary to law.”[10]  Further, an agency is “required in [its] statement of position to . . . set forth its understanding of the proposal . . . and supply all arguments and authorities in support of its position.”[11]  A party’s “[f]ailure to raise and support an argument will . . . be deemed a waiver of such argument.”[12]  Consistent with these principles, we reject, as unsupported, the Agency’s assertion that the proposal is contrary to a government-wide regulation.

 

2.           The proposal concerns bargaining-unit employees’ conditions of employment.

 

The Agency argues the proposal is outside the duty to bargain because it does not concern bargaining-unit employees’ conditions of employment.[13]  Section 7102(2) of the Statute gives bargaining-unit employees the right “to engage in collective bargaining with respect to conditions of employment” through their chosen exclusive representative.[14]  Section § 7103(a)(12) of the Statute defines “collective bargaining,” in pertinent part, as the parties’ mutual obligation to bargain “with respect to the conditions of employment affecting [bargaining-unit] employees.”[15]  Relatedly, § 7114(b)(2) of the Statute provides that the parties’ “duty . . . to negotiate in good faith . . . shall include the obligation . . . to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment.”[16]

 

With certain exclusions not relevant here, § 7103(a)(14) of the Statute defines “conditions of employment” as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.”[17]  Although “the phrase ‘conditions of employment’ is not a model of precision,”[18] the Authority has a well-established test for assessing whether a matter concerns bargaining-unit employees’ conditions of employment.  Specifically, nearly forty years ago – in Antilles[19] – the Authority stated that it would assess:  (1) “[w]hether the matter proposed to be bargained pertains to bargaining[-]unit employees”;[20] and (2) “[t]he nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees.”[21]

 

In Antilles, the Authority did not expressly define the term “working conditions.”  However, it effectively defined that term by finding the second part of the test – concerning “working conditions” – would assess “whether the record establishes that there is a direct connection between the [bargaining] proposal and the work situation or employment relationship of bargaining[-]unit employees.”[22]  For decades, the Authority treated the term “working conditions” as interchangeable with “work situation or employment relationship” – sometimes framing the second part of the Antilles test as concerning “working conditions,”[23] sometimes framing it as concerning the “work situation or employment relationship,”[24] and sometimes treating “working conditions” interchangeably with “work situation or employment relationship” in the same case.[25]

 

Further, at various points, the Authority stated that “there is no substantive difference between ‘conditions of employment’ and ‘working conditions’ as those terms are practically applied.”[26]  In that regard, the Authority determined that, “when faced with issues involving ‘working conditions,’ [the Authority and the courts] have accorded the term a broad interpretation that encapsulates a wide range of subjects that is effectively synonymous with ‘conditions of employment.’”[27]  The United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) found the Authority’s determination “reasonable.”[28]

 

Then, in U.S. DHS, U.S. CBP, El Paso, Texas     (El Paso I),[29] a majority of the Authority held that the terms “conditions of employment” and “working conditions” are “related, but . . . not synonymous.”[30]  Noting that § 7103(a)(14) of the Statute contains both of those distinct terms, the Authority relied on canons of statutory construction that “‘Congress acts intentionally’ when it ‘inclu[des] or exclu[des]’ particular words in a statute,” and that “two different terms used in the same context cannot mean the same thing and therefore must mean something different.”[31]  In an attempt to give the two terms different meanings, the Authority looked to the United States Supreme Court’s decision in Fort Stewart Schools v. FLRA (Fort Stewart).[32]  The Authority characterized Fort Stewart as holding “that while the term ‘conditions of employment’ is susceptible to multiple interpretations, the term ‘working conditions,’ as used in § 7103(a)(14), ‘more naturally refers . . . only to the “circumstances” or “state of affairs” attendant to one’s performance of a job.’”[33]  The Authority further stated that, “[i]n acknowledging the distinction between those terms, the [Supreme] Court cited with approval the . . . [D.C.] Circuit, which had earlier held that ‘working conditions’ are ‘the day-to-day circumstances under which an employee performs his or her job.’”[34]  The Authority did not address the longstanding Antilles precedent that effectively defined “working conditions” as the “work situation or employment relationship.”

In U.S. DHS, U.S. CBP, El Paso, Texas (El Paso II),[35] the Authority resolved the union’s motion for reconsideration of El Paso I.  The union claimed, among other things, that El Paso I was based on a misreading of Fort Stewart.[36]  A majority of the Authority rejected that claim, stating that the conclusion in El Paso I was “based on the plain wording of § 7103(a)(14) – not Fort Stewart.”[37]  The Authority explained that, “[w]hen referring to Fort Stewart, [the Authority had] found it persuasive that the Court had previously recognized that ‘conditions of employment’ and ‘working conditions’ are susceptible to distinct interpretations.”[38]  The Authority concluded that Fort Stewart “does support the conclusion that ‘conditions of employment’ and ‘working conditions’ are not synonymous terms.”[39]  The Authority denied the union’s motion.[40]

 

Subsequently, the union appealed El Paso I to the D.C. Circuit, which reversed the Authority and vacated El Paso I.[41]  The court found that, “[b]eyond stating” the terms “conditions of employment” and “working conditions” are “not synonymous, . . . the Authority fail[ed] to explain the differences between the terms or how the alleged differences matter under the language of § 7103(a)(14).”[42]  The court noted El Paso I quoted Fort Stewart “for the proposition that ‘while the term “conditions of employment” is susceptible to multiple interpretations, the term “working conditions,” as used in § 7103(a)(14), “more naturally refers . . . only to the ‘circumstances’ or ‘state of affairs’ attendant’ to one’s performance of a job.”[43]  The court then stated:  “But the [Supreme] Court clarified that ‘here it is not in isolation, but forms part of a paragraph whose structure, as a whole, lends support to the Authority’s broader reading.’”[44]  The court further stated that, “[b]y omitting the phrase ‘in isolation’ and the [Supreme] Court’s subsequent clarification, the Authority misread[] Fort Stewart to imply that ‘working conditions’ has a free-standing definition when, in fact, the point being made in Fort Stewart is the opposite.”[45]  Additionally, the court noted it previously upheld, as “reasonable,” the Authority’s interpretation that there is no substantive difference between the terms “conditions of employment” and “working conditions” as those terms are practically applied.[46]  The court remanded the matter to the Authority.[47] 

 

On remand, in El Paso III,[48] the Authority again addressed the meaning of “working conditions.”  “Because Congress left ‘working conditions’ undefined in the Statute,” the Authority found “Congress intended ‘working conditions’ to have a definition consistent with case law developed by the Federal Labor Relations Council (the Council) under Executive Order [(E.O.)] 11,941.”[49]  The Authority again found that “working conditions” must have a separate meaning from “conditions of employment.”[50]  The Authority “define[d] ‘working conditions’ as the circumstances or state of affairs attendant to one’s performance of a job.”[51]  Thus, the Authority concluded that, to determine whether an agency has a duty to bargain when it makes a “change to a personnel policy, practice, or matter,” the Authority must determine whether the change “affects the circumstances or state of affairs attendant to one’s performance of a job.”[52] Again, the Authority did not address well‑established Antilles precedent effectively defining “working conditions” as “work situation or employment relationship.”  However, the Authority stated:  “While not addressed in this decision, we believe that it is time for the Authority to reexamine Antilles.”[53]

 

Immediately on El Paso III’s heels, the Authority issued a decision again signaling that Antilles might be reexamined.[54]  Then, in NLRB[55] – a decision on exceptions from an arbitrator’s award – the Authority demonstrated that it intended to apply the El Paso III definition of “working conditions” narrowly.  Specifically, the Authority found the agency’s elimination of a health‑service unit did not affect employees’ working conditions, because the arbitration award under review did not “demonstrate that the elimination of the health service units affected the circumstances attendant to the grievants’ performance of their jobs.”[56]  The union in NLRB “cite[d] cases where the Authority found that the price of agency‑provided dining services is a condition of employment, held that elimination of agency-provided water bottles changes a condition of employment, and determined that the availability of agency-provided daycare facilities is a condition of employment.”[57]  The Authority determined that “none of the [cited] cases applied the new standard for determining whether a change affects an employee’s working conditions – the circumstances or state of affairs attendant to one’s performance of a job.”[58]  The Authority also stated those cases “d[id] not demonstrate that the change[s] affected the performance of an employee’s day-to-day job,” so the Authority would “no longer follow the test set forth in” those cases.[59]

 

However, for at least four reasons, we believe a reexamination of El Paso III and its limited progeny – and a reaffirmance of the longstanding Antilles test – is warranted.  First, the definition of “working conditions” that the Authority again adopted in El Paso III – “the circumstances or state of affairs attendant to one’s performance of a job” – was precisely the one the D.C. Circuit said was based on a “misread[ing]” of Fort Stewart.[60]  Second, none of the Council decisions the Authority cited in El Paso III adopted such a definition,[61] and the Authority did not cite any other support for that definition.  Third, El Paso III ignored the decades of precedent, discussed above, that effectively defined “working conditions” as “work situation or employment relationship.”  We note this definition is consistent with a common definition of “[c]onditions” as “the circumstances affecting the way in which people live or work, esp[ecially] with regard to their safety or well-being:  harsh working and living conditions.”[62]  Fourth, the Authority applied its El Paso III definition narrowly to reverse longstanding precedent and remove matters from the duty to bargain – contrary to courts’ repeated recognition that the duty to bargain over “conditions of employment” is a broad one.[63]

 

We also reaffirm that “there is no substantive difference between ‘conditions of employment’ and ‘working conditions’ as those terms are practically applied.”[64]  As noted above, the D.C. Circuit has found this interpretation “reasonable.”[65]  Moreover, we note that the interpretive “canon against surplusage” – previously cited by the Authority to insist that “conditions of employment” and “working conditions” must be distinct concepts – is “not an absolute rule.”[66] 

 

For the above reasons, we reaffirm the Antilles test, and we reverse El Paso III and its progeny – including NLRB – to the extent those decisions are inconsistent with this decision. 

 

Applying Antilles to the proposal at issue here, there is no dispute that the proposal pertains to bargaining‑unit employees.[67]  Therefore, the first factor of the Antilles test is met.

 

As for the second factor of the Antilles test, the Union argues the following with respect to the need for an ice dispenser in the bargaining-unit employees’ break room:  (1) the area in which those employees work is locked, with restricted access, “because of the not[‑]infrequent occurrence of disruptive and/or imminently suicidal [v]eteran‑patients”;[68] (2) the Agency requires the employees to remain in the Clinic “when staffing drops to the minimum level established by management” and when the employees “need to monitor disruptive and/or suicidal [v]eteran-patients in certain situations”;[69] (3) the employees are “regularly”[70] required to remain in the Clinic due to frequent employee illness, scheduled leave and/or days off, and reductions in “allowable and/or filled number[s] of Full-Time Equivalent positions in [the Clinic] over the past few years,”[71] combined with the fact that “management cannot always cover for the missing staff”;[72] (4) based on these factors, the employees are unable to leave the area “for as long as five hours” in some cases,”[73] which “adversely impacts, with some frequency and regularity, [their] ability to take breaks, lunches, and personal breaks (including for hydration)”;[74] (5) although the Agency claims it takes only fifty-one seconds for employees to get to an ice machine on another floor outside the Clinic,[75] “that still means a minimum of four to five minutes that [an employee] would have to be off the unit to get ice”;[76] (6) “[l]eaving disruptive and/or imminently suicidal [v]eteran‑patients unattended or insufficiently attended for that period is more than long enough for major violence and/or completed suicide to occur”;[77] and (7) “[s]ome persons may have health conditions which require the ready availability of ice to cool down when, as periodically happens in older buildings such as [the building at issue here], building temperatures spike to a high level.”[78] 

 

Regarding the need for the ice dispenser to be hands-free, the Union contends that:  (1) the ice dispenser would be in a “common area authorized for use by all employees supported by the common area”;[79] (2) “[v]eterans sometimes achieve access to the employee break room and could help themselves to ice even with their hands”;[80] (3) “[a]s COVID-19 has taught . . . us, and medical professionals have long known, illness can often easily be transmitted person‑to‑person via inanimate objects and surfaces – especially if proper hygiene is not observed”;[81] (4) “[u]sing a scoop and ice bucket, as the [A]gency wants, would mean many hands, including some carrying illness, touching the same objects and spreading sickness”;[82] (5) “[t]he alternative of using appropriate [personal protective equipment] and cleansing/sterilization of an ice scoop or bucket between uses would involve more time, less efficiency, and less certainty of uninfected ice and equipment”;[83] and (6) hands-free dispensing of ice is “in accordance with Centers for Disease Control [and Prevention] recommendations.”[84]

 

The Agency generally does not dispute the Union’s contentions but, with respect to staffing and coverage issues, asserts that:  (1) “the break and lunch issue is not an everyday occurrence, and very much depends on the amount of walk-in traffic and unexpected illness”;[85] and (2) the Clinic “is fully staffed, as far as . . . bargaining[-]unit employees go, but those unpredictable items are what impact breaks and meals and are not always within [managers’] control[,] which is why [n]urse [m]anagers cover for breaks, meals, etc. as they are able.”[86]  The Agency also asserts that “employees have access to a freezer, which can be utilized should an employee want to bring in their own ice.”[87]

 

However, the Union is not arguing that the issues arise every day, that there are unfilled bargaining-unit full‑time equivalents, or that nurse managers do not provide coverage “as they are able.”[88]  Rather, the Union argues that the coverage issues occur “regularly,”[89] and it clearly spells out various health and safety implications of not having hands-free ice available in the break room.  Further, the Agency’s claim that employees may bring in their own ice does not rebut the Union’s stated health concerns regarding multiple people being able to handle ice.  Additionally, the Agency does not dispute the Union’s specific claims regarding how having a hands-free ice dispenser in the break room would further bargaining-unit employees’ health and safety. 

 

For these reasons, we find the record establishes a direct connection between the proposal’s subject matter and bargaining-unit employees’ “working conditions,” i.e., their “work situation or employment relationship.”  We note, in this regard, that the Authority previously has found a direct connection between break-room appliances/machines and employees’ work situations.[90]  These decisions lend further support to finding the second Antilles factor met. [91]

 

As the proposal meets both Antilles factors, we find it concerns bargaining-unit employees’ conditions of employment.

 

3.          The Agency’s claim that it has not changed conditions of employment is unavailing in the circumstances of this case.

 

The Agency argues it has no obligation to bargain because it did not change any conditions of employment.[92]  However, the Authority has held parties have a duty to bargain over supplemental agreements where they have a national agreement that allows for such supplemental agreements.[93]  In its response, the Union asserts the parties’ national collective‑bargaining agreement (CBA) establishes a duty to bargain over the proposal.[94]  Article 32, Section 2 of the CBA provides:  “Other topics appropriate for local bargaining include, but are not limited to, access to microwaves, refrigerators, storage, coffee pots, and furniture.”[95]  According to the Union, this extends to allow bargaining over water-dispensing and ice‑dispensing machines.[96] 

 

As noted above, the Agency did not file a reply and, therefore, does not dispute the Union’s asserted meaning.  Section 2424.32(c)(ii)(2) of the Authority’s Regulations provides that a party’s “[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion.”[97]  Consistent with this regulation, we find the Agency has conceded that the parties’ CBA creates a duty to bargain over access to water‑dispensing and ice‑dispensing machines.[98]  As such, any alleged failure to make a change is irrelevant to whether the Agency has a duty to bargain, and we reject the Agency’s argument.

 

4.           The Agency has not demonstrated the proposal is contrary to management rights under § 7106 of the Statute.

 

The Agency further argues the proposal is contrary to management’s rights “to determine the mission, budget, organization, number of employees, and internal security practices of the agency.”[99]  A proposal that affects a management right under § 7106(a) of the Statute is nevertheless within the duty to bargain if it is an appropriate arrangement under § 7106(b)(3) of the Statute.[100]  The Union asserts in its response that the proposal is an appropriate arrangement under § 7106(b)(3),[101] and, as noted above, the Agency did not file a reply.  Nor did it argue, in its statement, that the proposal is not an appropriate arrangement.[102] 

 

Again, § 2424.32(c)(ii)(2) of the Authority’s Regulations provides that a party’s “[f]ailure to respond to an argument or assertion raised by the other party will, where appropriate, be deemed a concession to such argument or assertion.”[103]  Therefore, even assuming, without deciding, that the proposal affects the cited management rights,[104] we find the Agency has conceded that the proposal is an appropriate arrangement.[105]  As such, the Agency does not demonstrate the proposal is outside the duty to bargain on management-rights grounds.

 

5.           The Agency has not demonstrated that the proposal is contrary to an Agency-wide regulation.

 

The Agency argues the proposal is outside the duty to bargain because it conflicts with an Agency-wide regulation in two regards.[106]  To establish that an agency‑wide regulation relieves an agency of its duty to bargain, the agency must:  (1) identify a specific agency‑wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that is regulation is supported by a compelling need within the meaning of § 2424.50 of the Authority’s Regulations.[107]  The version of § 2424.50 applicable in this case provides:

 

A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:

 

(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency . . . in a manner that is consistent with the requirements of an effective and efficient government.[108]

 

The Agency asserts the proposal conflicts with § 1005 of an Agency-wide regulation titled “Department of VA, Use of Appropriated Funds to Purchase Kitchen Appliances” (the regulation).[109]  As relevant here, § 1005 of the regulation provides:  “Refrigerators may have a built-in ice maker where a health and safety need is justified[; however,] [t]he icemakers may not be located in-the-door, nor may the refrigerator have water dispensing capabilities.”[110]  The regulation also provides “[i]ce making machines separate from refrigerator ice makers may be purchased if refrigerator ice makers are not of sufficient capacity for the number of employees served by the common area or are justified as a health and safety need of employees.”[111]

 

Even assuming the Agency has met the first two prongs of the three-prong test set forth above, we find it fails to satisfy the third prong of that test.  The entirety of the Agency’s compelling-need argument is as follows:

 

[T]he Agency has a compelling need for this regulation as the entire regulation is regarding the Agency’s appropriate usage of appropriated funds to purchase kitchen appliances.  This regulation is essential and is distinguished from simply being helpful or desirable as it is necessary for ensuring appropriate usage of appropriated funds for the purchasing of kitchen furnishings.[112]

 

Apart from its conclusory reasoning, the Agency provides no basis for concluding that, if agreed upon and implemented, the Union’s proposal would affect the Agency’s ability to accomplish its mission or perform its functions.  Accordingly, we find the Agency has not established a compelling need for § 1005 of the regulation under § 2424.50(a).[113]

 

The Agency also argues the proposal conflicts with § 1001 of the regulation.[114]  Section 1001 of the regulation, as relevant here, provides:

 

In a June 25, 2004, decision, the Comptroller General (CG), modifying earlier CG decisions regarding the use of appropriated funds, concluded that appropriated funds may be used to purchase kitchen appliances ordinarily considered personal in nature, such as refrigerators, microwave ovens, coffee makers, and ice makers, when the primary benefit of their use is reasonably related to the efficient operation of an agency rather than an individual.[115]

 

According to the Agency, the proposal does not provide a primary benefit reasonably related to the efficient operation of the Agency, and therefore, is contrary to the regulation.[116]  Contrary to the Agency’s assertion, the 2004 CG decision referenced in the regulation supports a conclusion that there is a benefit to the Agency.  The  2024  CG decision[117] provides that the use of appropriated funds to obtain kitchen equipment for employees to use “contributes to the efficient operations of the agency and the health of personnel, and is one of many small but important factors that can assist federal agencies in recruiting and retaining the best work force.”[118]  Because the proposal would provide a benefit to the Agency’s efficient operation – as demonstrated by the very case cited in the Agency-wide regulation at issue – the Agency fails to demonstrate how the proposal conflicts with § 1001 of the regulation.  Accordingly, we reject this argument.[119]

 

For the above reasons, we find the proposal is within the duty to bargain.

 

IV.         Order

 

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain over the proposal.

 

 

Member Kiko, dissenting:

 

While I would also find the Union’s proposal for an ice machine in the clinic concerns a condition of employment, I disagree with the majority’s decision to once again abandon precedent that provides the labor‑management community with valuable guidance.1  In U.S. DHS, U.S. CBP, El Paso, Texas (El Paso)2 and NLRB,3 the Authority clarified a narrow but important distinction that should be plain to anyone reading the Federal Service Labor-Management Relations Statute (the Statute):  conditions of employment and working conditions cannot be synonymous.4 

 

In § 7103(a)(14), Congress defined “conditions of employment” as “policies, practices, and matters . . . affecting working conditions,” but did not provide a definition for the term “working conditions.”5  Under this section’s plain wording, “working conditions” are circumstances related to employees’ work that can be affected, while “conditions of employment” are the policies, practices, and matters that affect those work circumstances.6 

 

When engaged in statutory interpretation, courts strive to avoid interpretations that deprive Congress’s words of their meaning.7  However, the Authority held for the first time in 2009 that, since courts and the Authority had previously accorded “working conditions . . . a broad interpretation,” going forward the term would be “effectively synonymous” with “conditions of employment.”8  Thus, the Authority adopted an effectively circular definition—i.e., a condition of employment is a policy, practice, or matter affecting a condition of employment.

 

As the Authority recognized in El Paso,9 such an interpretation does not clarify the Statute’s meaning; it obscures it.10  Thus, drawing on pre-2009 Authority precedent11 and case law from the Federal Labor Relations Council,12 the Authority defined “working conditions” instead as the “circumstances or state of affairs attendant to one’s performance of a job.”13  Contrary to the majority’s claim, I believe this definition hews closer to the common definition of “conditions”: “the circumstances affecting the way in which people live or work.”14  Under the definition the Authority articulated in El Paso, “working conditions” are employees’ work‑related circumstances—i.e., the circumstances in which employees work—while “conditions of employment” are the policies, practices and matters that affect those circumstances.15 

 

Unfortunately, with today’s decision, the majority returns to the Authority’s previous circular definition, “reaffirm[ing] that ‘there is no substantive difference between conditions of employment and working conditions as those terms are practically applied.’”16  Because I believe El Paso and NLRB clarified an important distinction between two key terms in the Statute, I would apply those precedents here. 

 

As the Union demonstrates that access to an ice machine in the locked clinic is a matter affecting the circumstances attendant to the bargaining-unit employees’ performance of their work,17 I would also find that the Union’s proposal concerns a condition of employment.18  However, because I disagree with the majority’s decision to discard the El Paso interpretation of conditions of employment in favor of an inferior circular definition, I dissent.

 

 

 

 

 

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