United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local No. 12, American Federation of Government Employees, AFL-CIO (Union), filed three requests for assistance with the Federal Service Impasses Panel (Panel) to consider three separate negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Labor, Occupational Safety and Health Administration (OSHA), Washington, D.C. (Employer).

    After investigation of the requests for assistance, the Panel determined that the dispute, which arises from bargaining over the Employer’s decision to reconfigure the space of three directorates within OSHA, should be consolidated for administrative convenience, and resolved on the basis of single written submissions from each party. The parties also were advised that following receipt of their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision. Submissions were made in accordance with the Panel’s procedural instructions, and it has now considered the entire record.

    OSHA, an Agency within the Department of Labor, advises and assists the Secretary of Labor in formulating and executing policy and establishing national priorities for safety and health programs. In particular, the Directorate of Compliance Programs (Case No. 02 FSIP 3) establishes and maintains comprehensive occupational safety and health compliance guidance and assistance programs, and discrimination complaint investigation programs; the Directorate of Federal State Programs (Case No. 02 FSIP 13) develops and recommends policy and guidance in promoting and implementing Federal/State partnership of State safety and health programs; and the Directorate of Technical Support, Technical Center (Case No. 02 FSIP 14), provides maintenance and servicing of the Agency’s hazard measurement instrumentation equipment, and evaluates and procures new technical equipment, and manages the information systems network. Overall, the Union represents approximately 3,636 bargaining-unit employees who are located at the Washington headquarters of the Department of Labor. Some 50 bargaining-unit employees, 44 in the Directorate of Compliance Programs, up to 5 in the Directorate of Federal State Programs, and 1 in the Directorate of Technical Support, will be affected by the outcome of the dispute; they work as safety and occupational health specialists and in support positions (grades GS-2 through -14). The parties’ collective bargaining agreement (CBA) is due to expire March 29, 2002.

    All three cases concern the identical issue: Whether the Employer should be obligated to "reopen" negotiations on workstation and office size at the three directorates if, in an arbitration of a pending grievance, the Arbitrator decides that the CBA does not foreclose bargaining on that subject.⁽¹⁾

1.  The Union’s Position

    In its written submission, the Union modified its proposal to read:

The Employer has an obligation to bargain over work space changes under Article 29, Sections 3 and 4 of the CBA.⁽³⁾

2. The Employer’s Position

   The Employer believes that the Panel should decline to assert jurisdiction over the Union’s proposal, so it does not offer a counterproposal. The matter underlying the Union’s proposal, space, is not within the duty to bargain, therefore, a reopener to bargain that subject is equally outside the duty to bargain. Furthermore, Section 7116(d) of the Statute⁽⁶⁾ requires a party to elect either the grievance or the Unfair Labor Practice (ULP) forum, but not both. In this instance, the Union’s decision to litigate the identical issue in two previous ULP filings constitutes an election that forecloses further review. In addition, those decisions definitively resolved the question of the Employer’s duty to bargain over work space size under the CBA. In both cases, the Regional Director of the Washington Regional Office of the FLRA held that the Employer did not commit the alleged ULP charges. In the decision issued by the Regional Director on August 5, 1997, the refusal to issue a ULP complaint was essentially based on the view that the Union had waived its right to negotiate over space at the Department level; the Regional Director stated that the contract specifies that the appropriate level for bargaining over space is at the Agency level. In the second decision, issued on May 23, 2001, a ULP was not found because the Employer offered a reasonable interpretation of the CBA as a defense to the actions which the Union alleged violated the Statute. Thus, "the core of the Union’s proposal is a matter which has previously been determined by the [FLRA] as covered by the parties’ agreement." The grievance arbitrator "will have no other recourse than to apply the [FLRA’s] decision negating any reasonable rationale for holding this matter in abeyance pending arbitration review."

    Concerning actual space allocations, OSHA has attempted to provide "a much improved work environment that is efficient but also cosmetically pleasing." In an affidavit, the Director of Administrative Services states that the Department grants a limited amount of space to each Agency. In the Directorate of Compliance Programs, the space redesign is to accommodate 63 employees, resulting in 13 offices for supervisors and managers and 50, 72-square-foot cubicles for other unit and non-unit employees. The same affidavit states that the design calls for the reconfiguration of the reception area in the Directorate of Federal State Programs, reducing the number of cubicles from seven to five, and increasing the square footage of each cubicle. For the Directorate of Technical Support, Technical Center, the design for the docket office would provide one bargaining-unit employee a cubicle enlarged to 85 square feet.

    Having carefully considered the evidence and arguments presented by the parties, we conclude that the Union’s proposal should be adopted to resolve the impasse. Fundamentally, this is a dispute about whether, under certain conditions, the Union should be permitted to reopen bargaining over the size of unit employees’ workstations in the three directorates. In our view, neither the jurisdictional questions the Employer raises, nor its arguments concerning the merits of the workstation sizes it proposes to implement, are directly relevant to the matter before the Panel. Granted, it would have been better if the Union had received a definitive answer to the parties’ longstanding disagreement over the meaning of the CBA provisions which are the subject of the grievance prior to the start of the current negotiations. Under the circumstances, however, we see no reason why the Union should not be afforded the opportunity to negotiate over the size of the workstations if the Arbitrator sustains its grievance. This is particularly true now that the Union has changed its proposal so that the Employer is no longer required to hold in abeyance the implementation of its decision to reconfigure the space pending the grievance’s outcome. In this regard, if the Employer remains as confident of its jurisdictional arguments as it appears to be in its submission to the Panel, there would be no risk in implementing its changes before the Arbitrator decides the matter. On the other hand, if the Employer implements and the Arbitrator rules in favor of the Union, the worst that could happen is that the parties would reach an impasse where the merits of the size of the workstations eventually would have to be decided by the Panel. In either case, we fail to see the basis for the Employer’s concern. Accordingly, we shall order the adoption of the Union’s proposal.

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:

The parties shall adopt the Union’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 26, 2001

Washington, D.C.

3. Section 2. Space Guidelines, of Article 29, Space, in relevant part reads: 

In designing or redesigning the workplace, the Agency will use the following guidelines: 

a. All bargaining-unit employees shall have no less than sixty (60) square feet of working space.

In Section 3, Consultations, the CBA provides that space issues should be resolved at the lowest possible level. Following notice of space changes to the Chief Steward for the affected Agency, consultations are to occur. Section 3b of the Article states that these “discussions” should deal with “all aspects of the changes being proposed by management,” including “size, design and location of offices and workstations.” In Section 4, Negotiations, the Union is entitled to request negotiations within 5 workdays; the parties are referred to Article 36 for the conduct of such negotiations. Section 3 of Article 36 appears to cover Agency level negotiations on space changes; that Section specifies a 15-day start date, and mentions the services of both FMCS and the Panel.

4. The issue in the grievance arbitration is:

The Union seeks an interpretation and application of Articles 29 and 36 that is consistent with the contractual language and the intent of the parties which provide for consultations and negotiations regarding the size of offices and workstations.

5. The Union cites, among other cases, U.S. Department of Interior and U.S. Geological Survey, Reston, Virginia and NFFE Local 1309, 52 FLRA 475 (1996), (where the FLRA found the employer violated the Statute by refusing to bargain over a union proposal for a mid-term reopener).

6. Section 7116(d) of the Statute states as follows: 

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.