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29 FLRA No. 16

GENERAL SERVICES ADMINISTRATION

                   Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236, AFL-CIO

                   Charging Party

Case No. 3-CA-30491
   (19 FLRA 418)

DECISION AND ORDER ON REMAND

I. Introduction

In the previous decision in this case, General Services Administration, 19 FLRA 418 (1985), the Authority found, relying on Internal Revenue Service, 17 FLRA 731 (1985), that the Respondent did not violate the Federal Service Labor - Management Relations Statute (the Statute) by refusing to bargain with the Union and by refusing to supply requested information concerning crediting plans. The Authority held that the Respondent had no statutory duty to bargain concerning the issue of crediting plans because the matter, which was unrelated to management-initiated changes in conditions of employment, was initiated by the Union during the term of the parties' collective bargaining agreement. In view of this decision, the Authority found it unnecessary to address whether the subject matter of the negotiations itself was negotiable.

Subsequently, the Union petitioned the Court of Appeals for the Ninth Circuit for review of the Authority's decision. While that petition was pending, the Court of Appeals for the District of Columbia Circuit issued its decision in National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1967), setting aside and remanding the Authority's decisions in Internal Revenue Service, 17 FLRA 731 (1985), and Internal Revenue Service (District Office Unit), Department of the Treasury, 18 FLRA 361 (1985). In those decisions, the Authority held that an agency has no duty to [PAGE] bargain over union-initiated proposals made during the term of a collective bargaining agreement, where those proposals are unrelated to any changes in conditions of employment initiated by management. The court held that the Authority's decisions were contrary to the intent of Congress and the purpose of the Statute. More specifically, the court concluded that the provisions of the Statute do not distinguish mid-term bargaining from other types of bargaining in terms of the mutual obligation of the parties to negotiate over negotiable issues.

Thereafter, the Authority requested remand of the instant case for further proceedings consistent with the D.C. Circuit's decision in NTEU v. FLRA. The court granted the Authority's motion.

For the reasons stated below, we conclude, consistent with our decision in Internal Revenue Service, 29 FLRA No. 12 (1987), that an agency has an obligation to bargain on negotiable union-initiated proposals submitted during the term of a collective bargaining agreement concerning matters not covered in the agreement, unless the union has waived its right to bargain. 1 We further conclude, however, that because the Union sought the requested information solely in order to draft proposals in connection with bargaining concerning the establishment of crediting plans, and because that matter is outside the duty to bargain, the Respondent did not commit an unfair labor practice when it refused to furnish the Union with the requested information or when it refused to bargain concerning the establishment of the crediting plans.

II. History of the Case

A. Facts

The Respondent and the Union were parties to a collective bargaining agreement. During the term of the agreement, the Union requested the Respondent to negotiate concerning the establishment of crediting plans used in the merit promotion of bargaining unit employees. These plans were in existence and had been used prior to the effective date of the agreement. It was not alleged and the record does not show that the Respondent either proposed or initiated a change in the existing crediting plans. [ v29 p2 ]

In connection with the request to negotiate, the Union requested copies of the Respondent's model crediting plans on all job series within the bargaining unit in order to draft bargaining proposals. In response, the Respondent refused to negotiate over the issue of crediting plans and to furnish the Union with the requested information.

B. The Authority's Decision in 19 FLRA 418

In 19 FLRA 418, the Authority applied Internal Revenue Service, 17 FLRA 731, and concluded that the Respondent's refusal to bargain concerning crediting plans and refusal to supply the requested information did not constitute a violation of section 7116(a)(1), (5) and (8) of the Statute. Accordingly, the Authority dismissed the unfair labor practice complaint in its entirety.

III. Analysis on Remand

The question before us is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Statute when it refused to (1) negotiate concerning crediting plans used in merit promotion actions; and (2) provide the Union, pursuant to section 7114(b)(4) of the Statute, with copies of crediting plans which the Union sought in connection with the requested negotiations.

In our Decision and Order on Remand in Internal Revenue Service, we concluded that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not contained in the agreement and were not clearly and unmistakably waived by the Union during negotiation of the agreement. In this case, there is no evidence to show that the subject matter of crediting plans was addressed in the parties' agreement or that the Union clearly and unmistakably waived its right to bargain on this matter during negotiation of the parties' agreement. Therefore, we reverse the Authority's previous decision in this case to the extent that it held that the Respondent had no obligation to bargain over the subject matter of crediting plans because it was raised by the Union during the term of the parties' agreement.

In light of this determination, we must reexamine the allegations raised by the complaint since the previous decision dismissing the complaint was premised on the finding that the Respondent had no obligation to bargain [ v29 p3 ] over a union-initiated matter during the term of the agreement. First, we will address whether the information requested by the Union in connection with bargaining on the establishment of crediting plans is necessary within the meaning of section 7114(b)(4) of the Statute.

A. Whether the Respondent was required by section 7114(b)(4) of the Statute to furnish the requested information to the Union

For the reasons that follow, we find that the information is not necessary within the meaning of section 7114(b)(4).

Section 7114(b)(4)(B) of the Statute provides for release of information to an exclusive representative that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.)" In this case, the sole purpose of the Union's request for the Respondent's crediting plans was to negotiate regarding the establishment of these plans.

In The Montana Air Chapter of Association of Civilian Technicians and u.S. Department of the Air Force Montana Air National Guard, 19 FLRA 946 (1985), the Authority adopted the decision of the U.S. Court of Appeals for the District of Columbia circuit in Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 119 (D.C. Cir. 1985). The court's decision reversed the Authority's decision that crediting plans were negotiable in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983). In Montana, the Authority concurred in the result reached by the court and determined that the content of crediting plans is not within the duty to bargain.

Since the content of crediting plans is not a negotiable matter, we conclude that the information is not "necessary" within the meaning of section 7114(b)(4)(B) and, therefore, the Union is not entitled to the Respondent's plans to pursue its stated purpose of negotiating regarding their content. See Department of the Interior, Washington, D.C. and Bureau of Reclamation, Lower Colorado Dams Project, Boulder City, Nevada, 26 FLRA No. 98 (1987). We, therefore, conclude that the Respondent did not violate section 7116(a)(8) of the Statute as alleged in the complaint when it refused to furnish the Union with the requested information. [ v29 p4 ]

B. Whether the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to bargain with the Union concerning the establishment of crediting plans

As noted above, the Respondent had no duty to bargain over the Union's request to negotiate on the establishment of its crediting plans. In view of this determination, we find that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it refused to bargain with the Union concerning the establishment of these plans.

IV. Conclusion

For the foregoing reasons, we conclude that the Respondent (1) did not violate section 7116(a)(1) and (8) of the Statute by denying the Union's request for information about its crediting plans, and (2) did not violate section 7116(a)(1) and (5) by refusing to negotiate concerning the establishment of crediting plans. We therefore will dismiss the complaint.

ORDER

The complaint in Case No. 3-CA-30491 is dismissed.

Issued, Washington, D.C., September 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p5 ]

FOOTNOTES

Footnote 1 A separate Decision and Order on Remand will be issued in Internal Revenue Service (District Office Unit) Department of the Treasury, 18 FLRA 361.

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