American Federation of State, County and Municipal Employees, Local 2477, AFL-CIO; AFSCME Local 2910; Congressional Research Employees Association; Law Library of Congress United Association of Employees (Unions) and Library of Congress, Washington, DC (Agency); AFSCME Local 2910 (Union) and Library of Congress, Washington, DC (Agency)
[ v07 p578 ]
07:0578(89)NG
The decision of the Authority follows:
7 FLRA No. 89
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 2477; AMERICAN
FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, AFL-CIO,
LOCAL 2910; CONGRESSIONAL
RESEARCH EMPLOYEES ASSOCIATION;
and LAW LIBRARY OF CONGRESS
UNITED ASSOCIATION OF EMPLOYEES
Unions
and
LIBRARY OF CONGRESS,
WASHINGTON, D.C.
Agency
Case No. O-NG-211
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 2910
Union
and
LIBRARY OF CONGRESS,
WASHINGTON, D.C.
Agency
Case No. 0-NG-214
CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITIONS FOR REVIEW IN THESE CASES COME 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.SEC. 7101 ET SEQ.). /1/ THE ISSUE PRESENTED IS THE NEGOTIABILITY
OF THE FOLLOWING PROPOSALS WHICH WERE SUBMITTED BY THE UNIONS TO ADDRESS
ALLEGED MIDCONTRACT CHANGES IN EMPLOYEE WORKING CONDITIONS OCCASIONED BY
THE AGENCY'S DECISION TO RELOCATE BARGAINING UNIT EMPLOYEES TO A NEW
BUILDING.
UNION PROPOSALS I-VII /2/
A.6. NOISE FROM WORD PROCESSING PRINTERS WILL BE KEPT AT A MINIMUM,
NOT EXCEEDING A RECORDED LEVEL OF 50 DECIBELS ONE FOOT FROM THE
EQUIPMENT. LEXITRON AND OTHER CRT SCREENS WILL BE PLACED IN LOCATIONS
WHICH DO NOT REFLECT OVERHEAD LIGHTING GLARE FROM THEIR SCREENS.
A.7. EACH CRD EMPLOYEE WILL HAVE ADEQUATE WORK SPACE TO PERFORM HIS
OR HER WORK AND ADEQUATE FACILITIES TO STORE WORK RELATED MATERIAL,
WHICH SHALL NOT BE ALLOCATED FOR USE BY OTHER EMPLOYEES.
A.11. DESK AND TELEPHONES SHALL BE FULLY MOVEABLE TO ANY AREA WITHIN
AN OFFICE.
A.16. DESKS AND FILE CABINETS FOR THE EXCLUSIVE USE OF EMPLOYEES
SHALL BE FULLY SECURE FROM THEFT OF THE CONTENTS OR UNAUTHORIZED
INSPECTION OF THE CONTENTS.
D.3. A PLAN FOR SOUNDING FIRE ALARMS IN THE MADISON BUILDING SHALL
BE FULLY OPERATIONAL PRIOR TO THE MOVE OF ANY EMPLOYEE. THE FIRE ALARMS
ARE TO BE TESTED BY THE HEALTH AND SAFETY COMMITTEES OF THE APPROPRIATE
LABOR ORGANIZATIONS. VISUAL ALARMS FOR THE HEARING IMPAIRED WILL BE
TESTED AND FULLY OPERATIONAL BEFORE OCCUPANCY.
D.10. THE LIBRARY WILL FULLY ASSURE THE SECURITY OF THE MADISON
BUILDING AND ITS SURROUNDINGS AND THE SAFETY OF EMPLOYEES FROM ANY AND
ALL THREATS AND DANGERS TO THE EMPLOYEE'S PERSON OR PROPERTY.
D.15. AN EMERGENCY PHONE NUMBER WILL BE ESTABLISHED FOR THE MADISON
BUILDING AND PLACED ON EACH PHONE INSTRUMENT. TELEPHONE ACCESS TO
INDIVIDUAL WORK AREAS FROM OUTSIDE THE BUILDING, INCLUDING DIRECTORY
ASSISTANCE, SHALL BE MAINTAINED AT ALL TIMES WHEN EMPLOYEES ARE AT WORK.
THE AGENCY CONTENDS THAT UNION PROPOSALS I-VII ADDRESS ASPECTS OF
WORKING CONDITIONS THAT WILL NOT BE CHANGED BY THE RELOCATION OF
EMPLOYEES TO A NEW BUILDING. THEREFORE, THE AGENCY ASSERTS THERE IS NO
OBLIGATION TO BARGAIN MIDCONTRACT OVER THE PROPOSALS.
THUS, THE THRESHOLD DISPUTE BETWEEN THE PARTIES OVER THESE PROPOSALS
CONCERNS WHETHER THE AGENCY IS OBLIGATED TO BARGAIN, AT THIS TIME, OVER
THESE PROPOSALS. SUCH A DISPUTE DOES NOT FOCUS ON ISSUES APPROPRIATE
FOR RESOLUTION UNDER THE PROCEDURES SET FORTH IN SECTION 7117 OF THE
STATUTE AND PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.1 ET SEQ.), CONCERNING WHETHER A PARTICULAR UNION PROPOSAL IS
ITSELF NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW, RULE OR REGULATION.
RATHER, THE DISPUTE CONCERNS UNFAIR LABOR PRACTICE ISSUES APPROPRIATE
FOR RESOLUTION UNDER PROCEDURES SET FORTH UNDER SECTION 7118 OF THE
STATUTE. THAT IS, THE PROPER FORUM IN WHICH TO RESOLVE THESE ISSUES IS
NOT A NEGOTIABILITY APPEAL, BUT WOULD BE AN UNFAIR LABOR PRACTICE
PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE. IN THIS REGARD,
RESOLUTION OF THE DISPUTE MAY BE DEPENDENT UPON THE RESOLUTION OF
FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT. SUCH FACTUAL
DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF INVESTIGATORY AND
FORMAL HEARING PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S
RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE PROCEEDINGS (5
CFR 2423.1 ET SEQ.). SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA, 2 FLRA 181(1979) AND NATIONAL TREASURY EMPLOYEES
UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON,
D.C., 3 FLRA NO. 52(1980).
BASED ON THE FOREGOING, THE APPEAL OF UNION PROPOSALS I-VII DOES NOT
PRESENT ISSUES THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME
UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND
REGULATIONS. ACCORDINGLY, IT IS ORDERED THAT THE PORTIONS OF THE
UNIONS' PETITIONS FOR REVIEW RELATING TO UNION PROPOSALS I-VII BE
DISMISSED WITHOUT PREJUDICE TO THE UNIONS' RIGHT TO RESUBMIT TO THE
AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THESE
PROPOSALS, AFTER RESORTING TO THE PROCEDURES DISCUSSED ABOVE.
UNION PROPOSALS VIII-X /3/
UNION PROPOSAL VIII /4/
A.1. THE LIBRARY AGREES TO PROVIDE EACH CRS EMPLOYEE WITH AT LEAST
AS MUCH BOOK SHELF AND FILE CABINET SPACE AS THAT EMPLOYEE CURRENTLY
POSSESSES.
UNION PROPOSAL IX
A.2. AN EMPLOYEE'S WORK OR WORKING CONDITIONS WILL NOT BE NEGATIVELY
IMPACTED BY THE LIBRARY'S CHOICE OF OFFICE SIZE, EQUIPMENT OR
FACILITIES.
UNION PROPOSAL X
A.9. TO INSURE QUIET AND EFFICIENT WORKING CONDITIONS EACH EMPLOYEE
WORK STATION IN OPEN AREAS WILL BE SEPARATED BY PADDED, NONFLAMMABLE
PARTITIONS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS VIII-X WOULD REQUIRE
NEGOTIATIONS ON THE TECHNOLOGY OF PERFORMING WORK AND WOULD THEREFORE
BE
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
OF THE STATUTE, /5/ AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THAT PORTION OF UNION PROPOSAL IX CONCERNING
"EQUIPMENT OR FACILITIES" WOULD REQUIRE NEGOTIATIONS ON THE TECHNOLOGY
OF PERFORMING WORK AND THERFORE IS NEGOTIABLE ONLY AT THE ELECTION OF
THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE. THE REMAINING
PORTION OF UNION PROPOSAL IX CONCERNING "OFFICE SIZE," AS WELL AS UNION
PROPOSALS VIII AND X IN THEIR ENTIRETY, DO NOT REQUIRE NEGOTIATIONS ON
THE TECHNOLOGY OF PERFORMING WORK WITHIN THE MEANING OF SECTION
7106(B)(1) OF THE STATUTE AND THEREFORE ARE WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTIONS OF
THE UNIONS' PETITIONS FOR REVIEW RELATING TO THE PART OF UNION PROPOSAL
IX WHICH CONCERNS "EQUIPMENT OR FACILITIES" BE, AND IT HEREBY IS,
DISMISSED. HOWEVER, IT IS ORDERED FURTHER THAT THE AGENCY SHALL UPON
REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
THAT PORTION OF UNION PROPOSAL IX WHICH RELATES TO "OFFICE SIZE," AS
WELL AS CONCERNING UNION PROPOSALS VIII AND X. /6/
REASONS: THE AGENCY CLAIMS THAT THE AMOUNT OF BOOK SHELF AND FILE
CABINET SPACE TO BE POSSESSED BY EACH EMPLOYEE (UNION PROPOSAL VIII);
THE OFFICE SIZES, EQUIPMENT, AND/OR FACILITIES PLANNED FOR THE NEW
BUILDING (UNION PROPOSAL IX); AND THE USE OF PADDED, NONFLAMMABLE
PARTITIONS TO SEPARATE WORK STATIONS (UNION PROPOSAL X); ARE ALL PART
OF THE TECHNOLOGY OF PERFORMING WORK AND THEREFORE NEGOTIABLE ONLY AT
THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE.
THE AGENCY'S AUTHORITY TO DETERMINE "THE TECHNOLOGY . . . OF
PERFORMING WORK" IS NOT DEFINED IN THE STATUTE OR THE LEGISLATIVE
HISTORY. THEREFORE, CONSISTENT WITH THE PURPOSES AND MEANING OF THE
STATUTE AND IN THE ABSENCE OF ANY INDICATION THAT THE PHRASE AS USED IN
THE STATUTE HAS A MEANING OTHER THAN ITS ORDINARY MEANING, /7/ THE
AUTHORITY OF THE AGENCY TO DETERMINE "THE TECHNOLOGY . . . OF PERFORMING
WORK" MEANS THE AUTHORITY OF THE AGENCY TO DETERMINE THE TECHNICAL
METHOD THAT WILL BE USED IN ACCOMPLISHING OR FURTHERING THE PERFORMANCE
OF THE AGENCY'S WORK. ACCORDINGLY, IT MUST BE DETERMINED WHETHER THE
RECORD IN THIS CASE SUPPORTS THE CONCLUSION THAT ANY ASPECT OF UNION
PROPOSALS VIII-X CONCERNS THE TECHNICAL METHOD THAT WILL BE USED IN
ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF THE AGENCY'S WORK.
SPECIFICALLY IN REGARD TO UNION PROPOSAL VIII, WHILE IN SOME
CIRCUMSTANCES BOOK SHELF AND FILE CABINET SPACE CLEARLY COULD BE A PART
OF AN AGENCY'S WORK TECHNOLOGY WITHIN THE MEANING OF THE STATUTE, THE
AGENCY IN THE PRESENT CASE HAS NOT ESTABLISHED THAT SUCH FACILITIES HAVE
ANY TECHNOLOGICAL RELATIONSHIP TO ACCOMPLISHING OR FURTHERING THE
PERFORMANCE OF THE AGENCY'S WORK. THAT IS, EVEN ASSUMING THAT REFERENCE
MATERIALS, REQUIRED TO BE USED BY EMPLOYEES, WHICH ARE STORED ON THE
SHELVES AND IN THE CABINETS IN QUESTION (E.G., BOOKS, MICROFILMS FILES)
ARE, THEMSELVES, A PART OF THE TECHNICAL METHOD USED BY THE AGENCY FOR
ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF ITS WORK, THE STORAGE
SPACE ITSELF HAS NOT BEEN SHOWN TO HAVE BEEN PROVIDED FOR ANY TECHNICAL
PURPOSE. RATHER, SUCH SPACE RELATES PRINCIPALLY TO MATTERS AFFECTING
WORKING CONDITIONS OF EMPLOYEES, ALLOWING THEM TO KEEP AND USE SUCH
REFERENCE MATERIALS NEARBY THEIR WORK STATION. ACCORDINGLY, NOTING THE
AGENCY HAS NOT ALLEGED AND IT IS NOT APPARENT THAT CONTINUING TO PROVIDE
BOOK SHELF AND FILE CABINET SPACE AS REQUIRED BY UNION PROPOSAL VIII
WOULD BE INCONSISTENT WITH ANY OTHER LAW OR GOVERNMENT-WIDE RULE OR
REGULATION, UNION PROPOSAL VIII IS WITHIN THE DUTY TO BARGAIN.
IN REGARD TO UNION PROPOSAL IX, THE AGENCY HAS MADE NO SHOWING
WHATSOEVER THAT "OFFICE SIZE," UNDER THE CIRCUMSTANCES OF THIS CASE,
CONSTITUTES PART OF THE TECHNICAL METHOD USED BY THE AGENCY FOR
ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF ITS WORK. IN THE ABSENCE
OF SUCH A SHOWING, THE SIZE OF OFFICES WOULD BE MERELY INCIDENTAL TO THE
PERFORMANCE OF THE AGENCY'S WORK AND WOULD BE PRINCIPALLY RELATED TO
MATTERS AFFECTING WORKING CONDITIONS OF EMPLOYEES. ACCORDINGLY, NOTING
THE AGENCY HAS NOT ALLEGED AND IT IS NOT APPARENT THAT THE SIZE OF
OFFICES REQUIRED BY THIS PORTION OF THE PROPOSAL WOULD BE INCONSISTENT
WITH ANY OTHER LAW OR GOVERNMENT-WIDE RULE OR REGULATION, THIS PORTION
OF UNION PROPOSAL IX IS WITHIN THE DUTY TO BARGAIN.
THE REMAINING PORTION OF UNION PROPOSAL IX CONCERNING THE AGENCY'S
CHOICE OF EITHER "EQUIPMENT" OR "FACILITIES," HOWEVER, WOULD REQUIRE
NEGOTIATIONS ON THE TECHNOLOGY OF PERFORMING WORK. THAT IS, THIS
PORTION OF THE PROPOSAL IS DRAFTED BROADLY THROUGH THE USE OF GENERIC
TERMS. THEREFORE, IT NECESSARILY WOULD REQUIRE NEGOTIATIONS OVER ALL
EQUIPMENT AND FACILITIES, INCLUDING THOSE WHICH CONSTITUTE PART OF THE
TECHNICAL METHOD USED BY THE AGENCY FOR ACCOMPLISHING OR FURTHERING THE
PERFORMANCE OF ITS WORK. ACCORDINGLY, THIS PORTION OF UNION PROPOSAL
IX, AS DRAFTED, IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE. IT FOLLOWS, OF COURSE, THAT A
PROPOSAL FOCUSING ON PARTICULAR EQUIPMENT OR FACILITIES WHICH DO NOT
CONSTITUTE PART OF THE TECHNICAL METHOD USED BY THE AGENCY FOR
ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF ITS WORK, SUCH AS THE
BOOK SHELVES AND FILE CABINETS DISCUSSED ABOVE, WOULD BE WITHIN THE DUTY
TO BARGAIN IF OTHERWISE CONSISTENT WITH LAW AND REGULATION.
SPECIFICALLY IN REGARD TO UNION PROPOSAL X, WHILE IN SOME
CIRCUMSTANCES AN OPEN SPACE APPROACH TO OFFICE DESIGN COULD BE A PART OF
AN AGENCY'S WORK TECHNOLOGY WITHIN THE MEANING OF THE STATUTE, THE
AGENCY IN THE PRESENT CASE HAS NOT ESTABLISHED THAT AN OPEN SPACE
APPROACH TO OFFICE DESIGN HAS ANY TECHNOLOGICAL RELATIONSHIP TO
ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF THE AGENCY'S WORK.
FURTHER, EVEN IF SUCH A RELATIONSHIP WERE ESTABLISHED, THE AGENCY WOULD
ADDITIONALLY BE REQUIRED TO SHOW THAT THE PADDED, NONFLAMMABLE
PARTITIONS AROUND EACH EMPLOYEE WORK STATION, AS REQUIRED BY UNION
PROPOSAL X, WOULD INTERFERE WITH THE PURPOSE FOR WHICH AN OPEN SPACE
APPROACH TO OFFICE DESIGN WAS ADOPTED. THIS THE AGENCY ALSO HAS NOT
DONE. IN THE ABSENCE OF SUCH SHOWINGS, THE PARTITIONS REQUIRED BY THE
PROPOSAL WOULD BE MERELY INCIDENTAL TO THE PERFORMANCE OF THE AGENCY'S
WORK AND WOULD BE PRINCIPALLY RELATED TO MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES. ACCORDINGLY, UNION PROPOSAL X IS WITHIN THE
DUTY TO BARGAIN.
UNION PROPOSALS XI-XIII /8/
UNION PROPOSAL XI
A.14. EACH EMPLOYEE IN THE INQUIRY SECTION WILL BE SITUATED IN SUCH
A WAY AS TO MINIMIZE THE DISTRACTIONS TO EMPLOYEES FROM TELEPHONE CALLS.
UNION PROPOSAL XII
D.6. ALL CORRIDORS SHALL CONFORM TO THE D.C. FIRE CODE AND FEDERAL
REGULATIONS.
UNION PROPOSAL XIII
D.8. NO EMPLOYEE WILL BE REQUIRED TO PERFORM WORK IN AREAS WHICH
VIOLATE APPROPRIATE NFPA LIFE SAFETY CODES, OR WHICH VIOLATE THE
RECOMMENDATIONS OF THE 1973-74 FIREPRO REPORT ON FIRE SAFETY IN THE
MADISON BUILDING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS XI-XIII ARE OUTSIDE THE DUTY
TO BARGAIN BECAUSE, AS ALLEGED BY THE AGENCY, THEIR EFFECTUATION RESTS
WITHIN THE EXCLUSIVE DISCRETION OF THE ARCHITECT OF THE CAPITOL.
OPINION
CONCLUSION AND ORDER: THE AGENCY IS OBLIGATED TO BARGAIN OVER UNION
PROPOSALS XI-XIII TO THE EXTENT IT POSSESSES DISCRETION, AT LEAST, TO
RECOMMEND THE CHANGES CONTEMPLATED BY THOSE PROPOSALS TO THE ARCHITECT
OF THE CAPITOL SINCE THE SUBSTANTIVE CHANGES RELATE TO MATTERS AFFECTING
WORKING CONDITIONS. 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 UNION PROPOSALS XI-XIII. /9/
REASONS: THE AGENCY ALLEGES THAT IT HAS NO DUTY TO BARGAIN OVER
SITUATING EMPLOYEES SO AS TO MINIMIZE THEIR BEING DISTRACTED BY
TELEPHONE CALLS (UNION PROPOSAL XI) AND MAKING CHANGES IN THE BUILDING
TO CONFORM TO CERTAIN FIRE SAFETY REQUIREMENTS (UNION PROPOSALS XII AND
XIII) BECAUSE THE AGENCY DOES NOT HAVE THE AUTHORITY TO IMPLEMENT THE
PROPOSALS. MORE SPECIFICALLY, IT ASSERTS THE PROPOSALS WOULD REQUIRE
STRUCTURAL ALTERATIONS TO THE BUILDING WHICH 2 U.S.C. 141 RESERVES TO
THE EXCLUSIVE DISCRETION OF THE ARCHITECT OF THE CAPITOL, AS FOLLOWS:
"(T)THE ARCHITECT OF THE CAPITOL SHALL HAVE CHARGE OF ALL STRUCTURAL
WORK AT THE LIBRARY BUILDING . . . ," AND BASED THEREON CLAIMS ALL
DECISIONS REQUIRING "STRUCTURAL" CHANGE TO THE BUILDING REST EXCLUSIVELY
WITH THE ARCHITECT.
AS STATED IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND
INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118 (1980),
EXCEPT WHERE PROVIDED OTHERWISE BY LAW OR REGULATION, "TO THE EXTENT
THAT AN AGENCY HAS DISCRETION WITH RESPECT TO A MATTER AFFECTING THE
CONDITIONS OF EMPLOYMENT OF ITS EMPLOYEES, THAT MATTER IS WITHIN THE
DUTY TO BARGAIN OF THE AGENCY." IN THE PRESENT CASE, THE AGENCY
ACKNOWLEDGE THAT WHILE "(T)THE LEGISLATION (FOR THE CONSTRUCTION OF THE
BUILDING) DOES NOT ASSIGN ANY RESPONSIBILITIES TO THE LIBRARIAN (AGENCY)
WITH RESPECT TO CONSTRUCTION OF THE BUILDING, . . . IN PRACTICE THE
LIBRARIAN HAS CONSULTED WITH THE ARCHITECT EXTENSIVELY." /10/ FURTHER,
AN AFFIDAVIT SUBMITTED AS AN ATTACHMENT TO THE AGENCY'S STATEMENT OF
POSITION BY THE DEPUTY DIRECTOR OF THE LIBRARY ENVIRONMENT RESOURCES
OFFICE STATES, IN PART: "THE LIBRARY OF CONGRESS MAY RECOMMEND THE
ALTERATION (IN AREAS THE AGENCY HAS TERMED STRUCTURAL), BUT THE ULTIMATE
APPROVAL OR DISAPPROVAL OF SUCH WORK IS THAT OF THE ARCHITECT OF THE
CAPITOL. EVEN WHEN THE ARCHITECT OF THE CAPITOL AGREES TO MAKE
ALTERATIONS THERE IS ALWAYS THE MATTER OF TIMELINESS AS DICTATED BY
OVERALL WORK PRIORITIES." /11/
THUS, THE AGENCY CONCEDES IN THE RECORD THAT IT HAS, AT LEAST, THE
DISCRETION TO RECOMMEND TO THE ARCHITECT CHANGES IN THE AREAS IN
QUESTION. HENCE, SINCE THESE CHANGES RELATE TO MATTERS AFFECTING
WORKING CONDITIONS AND NOTING THE AGENCY HAS NOT ALLEGED AND IT IS NOT
APPARENT THAT THE PROPOSALS WOULD BE OTHERWISE INCONSISTENT WITH ANY LAW
OR REGULATION, THE AGENCY IS OBLIGATED TO BARGAIN OVER UNION PROPOSALS
XI-XIII TO THE EXTENT THAT IT HAS DISCRETION EVEN IF SUCH DISCRETION IS
LIMITED TO RECOMMENDING THE MATTERS PROPOSED TO THE ARCHITECT. OF
COURSE, INSOFAR AS THE ARCHITECT OF THE CAPITOL MIGHT HAVE FINAL
AUTHORITY UNDER LAW, AGREEMENT BETWEEN THE PARTIES HEREIN COULD NOT IN
ANY MANNER BIND THE ARCHITECT.
UNION PROPOSALS XIV-XVI /12/
UNION PROPOSAL XIV
A.3. TO INSURE QUIET AND EFFICIENT WORKING CONDITIONS EACH ANALYST'S
OFFICE WILL BE EQUIPPED WITH A DOOR.
UNION PROPOSAL XV
A.4. TO INSURE QUIET AND EFFICIENT WORKING CONDITIONS ALL TWO-PERSON
OFFICES WILL HAVE FLOOR TO CEILING PARTITIONS DIVIDING THE OFFICE.
UNION PROPOSAL XVI
E.2. TEN SHOWERS FOR MEN AND TEN SHOWERS FOR WOMEN WILL BE PROVIDED
IN AN AREA ASSESSIBLE FROM THE REAR LOADING AREAS. SIXTY LOCKERS
SUITABLE FOR TEMPORARY CLOTHING STORAGE WILL BE PROVIDED IN A SPACE
ADJACENT TO THE SHOWER AREA.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER, AS ALLEGED BY THE AGENCY, THESE PROPOSALS
WOULD REQUIRE NEGOTIATIONS ON THE TECHNOLOGY OF PERFORMING WORK AND
WOULD THERFORE BE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE; OR WHETHER THE PROPOSALS ARE OUTSIDE
THE DUTY TO BARGAIN BECAUSE THEIR EFFECTUATION RESTS WITHIN THE
EXCLUSIVE DISCRETION OF THE ARCHITECT OF THE CAPITOL.
OPINION
CONCLUSION AND ORDER: UNION PROPOSALS XIV-XVI, WHICH RELATE TO
MATTERS AFFECTING WORKING CONDITIONS, DO NOT REQUIRE NEGOTIATIONS ON THE
TECHNOLOGY OF PERFORMING WORK UNDER SECTION 7106(B)(1) OF THE STATUTE.
FURTHERMORE, THE AGENCY IS OBLIGATED TO BARGAIN OVER THE PROPOSALS TO
THE EXTENT IT POSSESSES DISCRETION, AT LEAST, TO RECOMMEND THE CHANGES
CONTEMPLATED BY THE PROPOSALS TO THE EXTENT IS POSSESSES DISCRETION, AT
LEAST, TO RECOMMEND THE CHANGES CONTEMPLATED BY THE PROPOSALS TO THE
ARCHITECT OF THE CAPITOL. 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 UNION PROPOSALS XIV-XVI. /13/
REASONS: IN REGARD TO UNION PROPOSALS XIV AND XV, THE ISSUE IS
WHETHER INDIVIDUAL OFFICES WILL HAVE DOORS (UNION PROPOSAL XIV) AND
WHETHER FLOOR TO CEILING PARTITIONS WILL DIVIDE ALL TWO-PERSON OFFICES
(UNION PROPOSAL XV). THE AGENCY HAS MADE NO SHOWING WHATSOEVER THAT
SUCH DOORS, OR FLOOR TO CEILING PARTITIONS, ON OFFICES ALREADY PLANNED
BY THE AGENCY CONSTITUTE PART OF OR INTERFERE WITH A TECHNICAL METHOD
USED BY THE AGENCY FOR ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF
ITS WORK. AS PREVIOUSLY DISCUSSED IN CONNECTION WITH UNION PROPOSALS
VIII-X, HEREIN, IN THE ABSENCE OF SUCH SHOWINGS, EQUIPPING INDIVIDUAL
OFFICES WITH DOORS OR ALL TWO-PERSON OFFICES WITH FLOOR TO CEILING
PARTITIONS, AS REQUIRED BY THESE TWO PROPOSALS, WOULD BE MERELY
INCIDENTAL TO THE PERFORMANCE OF THE AGENCY'S WORK AND WOULD BE
PRINCIPALLY RELATED TO MATTERS AFFECTING WORKING CONDITIONS OF
EMPLOYEES.
IN REGARD TO UNION PROPOSAL XVI, THE RECORD INDICATES SHOWER AND
LOCKER FACILITIES ARE DESIRED BY CUSTODIANS AND GROUNDSKEEPERS WHO COME
INTO CONTACT WITH DIRT, DUST, AND CHEMICALS IN THE COURSE OF THEIR
EMPLOYMENT. THE AGENCY, SIMILARLY, HAS MADE NO SHOWING THAT SUCH SHOWER
AND LOCKER FACILITIES RELATE IN ANY MANNER TO THE TECHNICAL METHOD USED
BY THE AGENCY FOR ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF ITS
WORK. CONSEQUENTLY, PROVISION OF SUCH SHOWER AND LOCKER FACILITIES AS
REQUIRED BY THE PROPOSAL LIKEWISE WOULD BE MERELY INCIDENTAL TO THE
PERFORMANCE OF THE AGENCY'S WORK AND WOULD BE PRINCIPALLY RELATED TO
MATTERS AFFECTING THE WORKING CONDITIONS OF THESE CUSTODIANS AND
GROUNDKEEPERS.
FURTHER, AS DISCUSSED IN DETAIL IN CONNECTION WITH UNION PROPOSALS
XI-XIII, HEREIN, THE AGENCY ALLEGATION THAT UNION PROPOSALS XIV-WVI ARE
NOT WITHIN THE DUTY TO BARGAIN BECAUSE THE AGENCY DOES NOT HAVE
AUTHORITY TO IMPLEMENT THEM CANNOT BE SUSTAINED. AS PREVIOUSLY STATED,
THE AGENCY CONCEDES THAT IT HAS, AT LEAST, THE DISCRETION TO RECOMMEND
TO THE ARCHITECT CHANGES IN THE AREAS IN QUESTION. FURTHERMORE, IT HAS
NOT ALLEGED AND IT IS NOT APPARENT THAT ANY OF THE PROPOSALS WOULD BE
OTHERWISE INCONSISTENT WITH ANY LAW OR REGULATION. HENCE, THE AGENCY IS
OBLIGATED TO BARGAIN OVER UNION PROPOSALS XIV-XVI TO THE EXTENT THAT IT
HAS DISCRETION, EVEN IF SUCH DISCRETION IS LIMITED MERELY TO
RECOMMENDING THE MATTERS PROPOSED TO THE ARCHITECT. OF COURSE, AS
STATED WITH RESPECT TO UNION PROPOSALS XI-XIII, INSOFAR AS THE ARCHITECT
OF THE CAPITOL MIGHT HAVE FINAL AUTHORITY UNDER LAW, AGREEMENT BETWEEN
THE PARTIES HEREIN COULD NOT IN ANY MANNER BIND THE ARCHITECT.
UNION PROPOSAL XVII
C.4. PRIOR TO THE BEGINNING OF THE MOVE OF ANY EMPLOYEES, THE FIRST
AID FACILITIES IN THE MADISON BUILDING WILL BE FULLY OPERATIONAL DURING
THE HOURS WHEN EMPLOYEES ARE AT WORK.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THIS PROPOSAL CONSTITUTES A MATTER NEGOTIABLE
ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE
STATUTE, /14/ AS ALLEGED GENERALLY BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL XVII DOES NOT CONSTITUTE A
MATTER NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) OF THE STATUTE. 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 UNION PROPOSAL XVII. /15/
REASONS: THIS PROPOSAL DOES NOT PRESENT THE QUESTION OF WHETHER THE
ESTABLISHMENT OF A FIRST AID FACILITY IS WITHIN THE DUTY TO BARGAIN.
RATHER, THE RECORD INDICATES THE AGENCY ALREADY HAS PLANNED SUCH A
FACILITY. FURTHER, THE PROPOSAL DOES NOT PRESENT QUESTIONS AS TO THE
NEGOTIABILITY OF THE MEANING OF THE PHRASE "FULLY OPERATIONAL" AS USED
IN THE PROPOSAL OR OF A PARTICULAR LEVEL OF STAFFING, BOTH OF WHICH ARE
CONCEDED BY THE UNION TO BE MATTERS WITHIN THE RIGHT OF MANAGEMENT TO
DETERMINE. HENCE, UNDER THESE CIRCUMSTANCES, THE AUTHORITY IS FACED
ONLY WITH THE QUESTION OF WHETHER THE INITIAL DATE AND THE STARTING AND
ENDING TIMES FOR OPERATION OF THE PLANNED FIRST AID FACILITY ARE WITHIN
THE DUTY TO BARGAIN. CONTRARY TO THE AGENCY'S UNSUPPORTED CLAIM,
NOTHING IN SECTION 7106(B)(1) OF THE STATUTE, OR IN ANY OTHER LAW OR
REGULATION, PRECLUDES NEGOTIATIONS OVER THESE MATTERS OF TIMING.
ACCORDINGLY, UNION PROPOSAL XVII IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE AUTHORITY HEREBY GRANTS THE REQUEST OF ALL THE PARTIES THAT
THE APPEALS IN THESE TWO CASES BE CONSOLIDATED. IN SO DOING, THE
AUTHORITY NOTES THAT THE PROPOSALS IN DISPUTE AROSE OUT OF THE SAME SET
OF NEGOTIATIONS, THAT THE PARTIES IN CASE NO. 0-NG-214 ARE AMONG THE
PARTIES IN CASE NO. 0-NG-211, AND THAT THE PROPOSALS WHICH REMAIN AT
ISSUE IN CASE NO. 0-NG-214 ARE AMONG THE PROPOSALS AT ISSUE IN CASE NO.
0-NG-211.
/2/ IN THOSE PROPOSALS IN WHICH THERE IS AN UNDERLINED PORTION, ONLY
THE UNDERLINED PORTION OF THE PROPOSAL IS IN DISPUTE.
/3/ FOR CONVENIENCE OF DECISION, THESE PROPOSALS ARE CONSIDERED
TOGETHER BECAUSE THEY PRESENT THE SAME QUESTION.
/4/ THE AGENCY REQUESTS THAT THE APPEAL OF UNION PROPOSAL VIII, AS
WELL AS UNION PROPOSALS XII AND XVI, INFRA, BE DISMISSED AS UNTIMELY
FILED. IT ASSERTS THE UNIONS' APPEAL AS TO THESE PROPOSALS WAS NOT
FILED WITHIN 15 DAYS AFTER THE AGENCY ALLEGATION THAT THEY ARE NOT
WITHIN THE DUTY TO BARGAIN. SECTION 2424.3 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.3) SPECIFIES THAT THE 15 DAY TIME LIMIT BEGINS
TO RUN WHEN AN AGENCY RENDERS ITS ALLEGATION OF NONNEGOTIABILITY IN
RESPONSE TO THE UNION'S WRITTEN REQUEST. IN THIS CASE IT IS UNDISPUTED
THAT THE ALLEGATION WITH RESPECT TO WHICH THE AGENCY CLAIMS THESE THREE
PROPOSALS WERE UNTIMELY FILED WAS NOT REQUESTED IN WRITING BY THE
UNIONS. THERFORE, UNDER THE RULES, THE ALLEGATION DID NOT START THE
RUNNING OF THE 15 DAY TIME LIMIT FOR THE APPEAL. CONSEQUENTLY, THE
AGENCY REQUEST TO DISMISS AS UNTIMELY THE PORTIONS OF THE APPEAL
RELATING TO UNION PROPOSALS VIII, XII AND XVI IS DENIED.
/5/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATION--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY, METHODS,
AND MEANS OF
PERFORMING WORK(.)
/6/ IN DECIDING THAT PORTIONS OF THE UNIONS' PROPOSALS ARE WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE
MERITS OF THE PROPOSALS.
/7/ SEE WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED
(1976)).
/8/ FOR CONVENIENCE OF DECISION, THESE PROPOSALS ARE CONSIDERED
TOGETHER BECAUSE THEY PRESENT THE SAME QUESTION.
/9/ IN SO DECIDING THAT THESE PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROPOSALS.
/10/ EXHIBIT 5 ATTACHED TO THE AGENCY'S STATEMENT OF POSITION.
/11/ EXHIBIT 1 ATTACHED TO THE AGENCY'S STATEMENT OF POSITION.
/12/ FOR CONVENIENCE OF DECISION, THESE PROPOSALS ARE CONSIDERED
TOGETHER BECAUSE THEY PRESENT THE SAME QUESTIONS.
/13/ IN SO DECIDING THAT THESE PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROPOSALS.
/14/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION,
WORK PROJECT, OR TOUR OF DUTY, OR ON THE TECHNOLOGY, METHODS, AND MEANS
OF PERFORMING WORK(.)
/15/ IN SO DECIDING THAT UNION PROPOSAL XVII IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROPOSAL.