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6 FLRA NO. 76

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32

                    Union

and

OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.

                    Agency

 

Case No. 0-NG-177-1

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case came before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) (5 U.S.C. 7101 - 7135). The only issue remaining is the negotiability of Union Proposal 1, which reads as follows: 1

Article 3, Section 1. Management shall establish free daycare facilities for the children of OPM employees.

Questions Before the Authority

The questions are whether the remaining proposal is outside the duty to bargain under the Statute because (1) it does not concern "conditions of employment," (2) it is inconsistent with the Agency's right to determine its budget under section 7106(a) of the Statute, or (3) it is inconsistent with other Federal law, all as alleged by the Agency.

Opinion

Conclusion and Order: The proposal concerns "conditions of employment" and is not inconsistent with the Agency's right to determine its budget [ v6 p423 ] or with other Federal law. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1981)), IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the Union's proposal. 2

Reasons: In American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA No. 77 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, F.2d (D.C. Cir. 1981), the Authority determined that a union proposal containing the following language concerned a condition of employment within the meaning of section 7103(a)(14) of the Statute: 3

The employer will provide adequate space and facilities for a day care center . . . .

The proposal here is dispute, which likewise would require the Agency to establish day care facilities, bears no material difference from the proposal which was before the Authority in the Wright - Patterson case. Accordingly, for the reasons fully set forth in Wright - Patterson, the proposal here must also be held to concern a condition of employment.

As to the further claim that the proposal is inconsistent with the Agency's right to determine its budget under section 7106(a)(1) of the Statute, 4 the decision in Wright - Patterson also is relevant. [ v6 p424 ]

There, the Authority articulated the standard which must be met by an agency to support such a contention (at page 5 of the decision):

(A) union proposal attempting to prescribe the particular programs or operations the agency would include in its budget or to prescribe the amount to be allocated in the budget for them would infringe upon the agency's right to determine its budget under section 7106(a)(1) of the Statute.

Moreover, where a proposal which does not by its terms prescribe the particular programs or amounts to be included in an agency's budget, nevertheless is alleged to violate the agency's right to determine its budget because of increased cost, consideration must be given to all the factors involved. That is, rather than basing a determination as to the negotiability of the proposal on increased cost alone, that one factor must be weighed against such factors as the potential for improved employee performance, increased productivity, reduced turnover, fewer grievances, and the like. Only where an agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits can an otherwise negotiable proposal be found to violate the agency's right to determine its budget under section 7106(a) of the Statute.

Thus, under the standard set forth in Wright - Patterson, a proposal would be found to interfere with an agency's right to determine its budget if the proposal by its terms prescribed a particular program or an amount of funds to be included in the agency's budget or, if the agency made a substantial demonstration that the proposal would result [ v6 p425 ] in a significant and unavoidable increase in costs which would not be offset by compensating benefits.

Turning to the present case, the Agency, in its Statement of Position which was filed prior to issuance of the Wright - Patterson decision, contended without documentation that the proposal would interfere with its right to determine its budget. The Authority then issued an Order granting the parties additional time to supplement their statements concerning the budgetary impact of the proposal in light of Wright - Patterson. In response, the Agency filed a statement arguing generally that the establishment of day care facilities would "involve a sizeable expenditure for a major new program". The Agency did not, however, provide specific information with respect to the actual cost of providing day care facilities under the proposal.

For the following reasons, the Authority cannot sustain the contention that the disputed proposal is inconsistent with the right of the Agency to determine its budget. The proposal does not by its express terms prescribe that the Agency shall include in its budget a day care program or an amount of funds to be allocated therefor and, despite having been granted an additional opportunity to do so, the Agency has not submitted any specific information concerning increased costs under the proposal. Instead, the Agency's claim is unsupported and general. Consequently, under the record it must be concluded that the Agency has not made a substantial demonstration that the proposal would result in a significant and unavoidable increase in costs. Nor has the Agency even attempted to demonstrate that any increase in costs would not be offset by compensating benefits. Accordingly, under Wright - Patterson, supra, the Agency's allegation that the proposal is inconsistent with its right to determine its budget must be rejected.

In a related argument that the proposal is outside the duty to bargain, the Agency claims it could not guarantee its ability to provide for a free day care facility because funds therefor would have to be approved by the Office of Management and Budget (OMB) and then by Congress. The thrust of this argument is that no duty to bargain exists in the absence of total discretion to implement any agreement reached. However, an agency has a duty to bargain over conditions of employment to the extent it has any discretion concerning them. 5 Thus, if the Agency's discretion in this case, as it claims, is limited to requesting approval from OMB, the Agency would be obligated to bargain to that extent. [ v6 p426 ]

Further, in this connection, section 7114(b)(5) of the Statute provides that the duty of an agency to negotiate in good faith includes the obligation "to take such steps as are necessary to implement" any agreement reached between the parties. Thus, the circumstance that an agency might be unable to directly or completely implement an agreement reached through negotiations because of a limitation on its discretion would not render an otherwise negotiable proposal outside the duty to bargain. Rather, the agency would in those circumstances be obligated to take such steps as are within its discretion, including appropriate requests to third parties, to implement the agreement. In the present case, should it be necessary to request approval from OMB regarding any agreement to establish day care facilities that might be negotiated, 6 the Agency would, pursuant to section 7114(b)(5) of the Statute, be obligated to seek such approval. Accordingly, the Agency's contention that it lacks discretion to directly implement any agreement reached does not support its allegation that the proposal is outside the duty to bargain.

The Agency further argues that the proposal is inconsistent with provisions of Federal law which authorize and make appropriations to the Agency. However, the Agency failed to advert to any specific inconsistency between the proposal and any particular Federal law. Moreover, research does not reveal any applicable statutory restriction on the Agency's use of appropriated funds in connection with a day care facility. 7 Accordingly, as the proposal has not been shown by the Agency to be inconsistent with Federal laws which authorize and appropriate funds to the Agency for necessary expenses, and no inconsistency is otherwise apparent, the Agency's claim to the contrary cannot be sustained and provides no support for finding the proposal to be outside the duty to bargain. [ v6 p427 ]

Finally, under 40 U.S.C. 490(a)(16) 8 which authorizes the Administrator of General Services to lease certain parts of public buildings to persons, firms, or organizations, the Agency argues that it is precluded from donating space for a day care facility. However, contrary to the Agency's contention, nothing in the cited provision would preclude the Agency's exercising its discretion so as to allocate a portion of its existing space for day care purposes. Moreover, nothing in the Union's proposal would specifically require the Agency to donate space. Pursuant to a negotiated agreement, should it be necessary for the Agency to seek a facility from GSA, it would be obligated, pursuant to section 7114(b)(5) of the Statute, to make an appropriate request to GSA. Accordingly, in view of the above, the Agency's contention that the proposal would be inconsistent with 40 U.S.C. 490(a)(16) cannot be sustained.

In concluding that the Agency has not supported its allegation that the day care proposal is outside the duty to bargain, the Authority's decision, of course, does not require the Agency to agree to the [ v6 p428 ] proposal. Although the bargaining process lends itself to a consideration of the consequences of the proposal, should matters of concern to the Agency, such as cost and the availability of space, prevent the parties from reaching agreement, such considerations could be presented to the Federal Service Impasses Panel in a proceeding to resolve a negotiation impasse pursuant to section 7119 of the Statute. Finally, nothing in our decision should be construed as requiring the Agency to expend appropriated funds in a manner contrary to its budget or any applicable law, rule, or regulation, including those which restrict the expenditure of funds.

Issued, Washington, D.C., August 19, 1981

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v6 p429 ]

 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32

                           Union

         and

OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.

                           Agency

Case No. 0-NG-177-1
6 FLRA No. 76

 

ORDER DENYING REQUEST FOR RECONSIDERATION OF DECISION ON NEGOTIABILITY ISSUE

This matter is before the Authority on a request by the Office of Personnel Management for reconsideration of the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA No. 76 (1981).

In seeking reconsideration, 9 the Agency contends generally that matters which the Authority determined to be within the mandatory scope of bargaining should, instead, be found to be permissibly negotiable at the election of the Agency. Thus, the Agency's contentions amount to no more than mere disagreement with the Authority's statements in its decision concerning the scope of the Agency's duty to bargain. 10 In [ v6 p ] these circumstances, the Agency has failed to present persuasive reasons which would warrant reconsideration by the Authority.

Accordingly, IT IS ORDERED that the Agency's request for reconsideration of the Authority's decision in the instant case be, and it hereby is, denied. 11

Issued, Washington, D.C., May 7, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v6 p ]

FOOTNOTES

Footnote 1 Union Proposals 2-5 were severed from the proposal herein and considered separately by the Authority in 3 FLRA No. 120 (1980).

Footnote 2 In deciding that the proposal is within the duty to bargain, the Authority, of course, makes no judgment as to its merits.

Footnote 3 Section 7103(a)(14) provides: 7103. Definitions; application (a) For the purpose of this chapter-- (14) 'conditions of employment' means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters-- (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by Federal statute(.)

Footnote 4 Section 7106(a)(1) provides: 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency(.)

Footnote 5 See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA No. 119 (1980) at 10.

Footnote 6 The Agency's contention that OMB would have to approve funds for the proposed day care facility is not supported by any reference to law or regulation and the Authority makes no ruling herein as to its accuracy.

Footnote 7 In reaching this conclusion, the Authority has considered, inter alia, section 903 of the Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1111, 1224; Treasury, Postal Service, and General Government Appropriations Act, 1980, P.L. 96-74, 93 Stat. 559; and Joint Resolution continuing appropriations for Fiscal Year 1981, P.L. 96-536, 94 Stat. 3166.

Footnote 8 40 U.S.C. 490(a)(16) provides as follows: 490. Operation of buildings and related activities by Administrator-General duties (a) Whenever and to the extent that the Administrator has been or hereafter may be authorized by any provision of law other than this subsection to maintain, operate, and protect any building, property, or grounds situated in or outside the District of Columbia, including the construction, repair, preservation, demolition, furnishing, and equipment thereof, he is authorized in the discharge of the duties so conferred upon him-- (16) to enter into leases of space on major pedestrian access levels and courtyards and rooftops of any public building with persons, firms, or organizations engaged in commercial, cultural, education, or recreational activities (as defined in section 612a of this title). The Administrator shall establish a rental rate for such leased space equivalent to the prevailing commercial rate for comparable space devoted to a similar purpose in the vicinity of the public building. Such leases may be negotiated without competitive bids, but shall contain such terms and conditions and be negotiated pursuant to such procedures as the Administrator deems necessary to promote competition and to protect the public interest(.)

Footnote 9 Although the Agency's submission is styled as a request for reconsideration "and clarification," the Agency disagrees with and seeks only reconsideration of the Authority's statement regarding the scope of mandatory bargaining under the Statute.

Footnote 10 Regarding the nonnegotiability of proposals which an agency totally lacks the discretion to implement, see American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No. 87 (1982).

Footnote 11 Thus, it is unnecessary to rule upon the Union's procedural motion to dismiss the request for reconsideration.

 

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