[ v21 p1046 ]
21:1046(122)NG
The decision of the Authority follows:
21 FLRA No. 122
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 644
Union
and
U.S. DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION
Agency
Case No. 0-NG-977
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes 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) and
raises issues concerning the negotiability of three Union proposals made
in connection with an office relocation.
II. Threshold Issue
The Agency contends that it has no duty to bargain any of the three
proposals because the office relocation does not substantially or
materially affect any condition of employment. It also claims as to
Union Proposal 2 that it has no duty to bargain based on bargaining
history and the coverage of the parties' existing agreement.
The Authority has consistently held that we will only decide in a
negotiability appeal issues which are before us under section
7105(a)(2)(D) and (E) of the Statute. To the extent that there are
factual issues in dispute between the parties concerning the duty to
bargain in the specific circumstances of this case, these issues may be
raised in other appropriate proceedings. See American Federation of
Government Employees, AFL-CIO, Local 2736 and Department of the Air
Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air
Force Base, Michigan, 14 FLRA 302 (1984).
III. Union Proposal 1
Management shall provide sufficient telephones necessary to
conduct government business.
A. Positions of the Parties
The Agency contends that the proposal is bargainable only at the
election of the Agency under section 7106(b)(1) because it concerns the
technology, methods, and means of performing work i.e., the Agency will
determine the number of telephone instruments necessary for the conduct
of its business. The Agency also maintains that there is no obligation
to bargain on the proposal because it is inconsistent with the
requirement under section 7101(b) of the Statute that the Statute be
interpreted in a manner consistent with an effective and efficient
Government.
The Union contends that the proposal is negotiable because the
employees in the effected office are Mine Safety and Health Inspectors
who have a critical need for the use of a telephone to perform their
official duties and because the Agency signed a Memorandum of
Understanding with the Union in which the Agency did in fact bargain
over telephones and thus established a past practice of bargaining over
the matter.
B. Analysis and Conclusion
Union Proposal 1, by requiring that sufficient telephones "for the
conduct of Government business" be furnished, concerns the "technology
of performing work" within the meaning of section 7106(b)(1) of the
Statute. American Federation of Government Employees, Local 644,
AFL-CIO and U.S. Department of Labor, Mine Health and Safety
Administration, Morgantown, West Virginia, 15 FLRA No. 170 (1984) (Union
Proposal 3), citing American Federation of Government Employees,
AFL-CIO, Local 3760 and Social Security Administration, Disability
Analysis Branch, Field Assessment Office, 11 FLRA 576 (1983) and cases
cited therein. Under section 7106(b)(1), such matters are negotiable at
the Agency's election. Also, it is well established that an agency may
withdraw from bargaining on a matter within the coverage of section
7106(b)(1) of the Statute at any time prior to reaching final agreement
on such matter. See National Federation of Federal Employees, Local
1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16
FLRA No. 60 (1984) (Provisions 2-3); American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and Department of Justice, Immigration and Naturalization
Service, 8 FLRA 347 (1982) (Union Proposal 15), rev'd on other grounds
sub nom. United States Department of Justice, Immigration and
Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). Since
the Agency has declined to bargain on the proposal, we conclude that
Union Proposal 1 is not within the duty to bargain. We therefore need
not address the Agency's additional claim that bargaining over the
proposal would be inconsistent with section 7101(b).
IV. Union Proposal 2
Adequate parking shall be provided for both government and
private automobiles.
A. Positions of the Parties
The Agency argues that the proposal conflicts with government-wide
regulations pertaining to parking and is inconsistent with section
7106(a) and (b)(1) of the Statute because it relates to the assignment
of work.
The Union contends that the proposal is negotiable because it deals
only with maintaining the adequacy of parking for bargaining unit
employees.
B. Analysis and Conclusion
The Government-wide regulations relied upon by the Agency are the
same as those involved in American Federation of Government Employees,
Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and
Health Administration, 21 FLRA No. 84 (1986) (Union Proposals 6 and 11).
In that case we found that the regulations were not a bar to
negotiation of a proposal to provide parking for private and government
vehicles. For the reasons stated in that decision, we reach the same
result in the present case. As to whether the proposal is inconsistent
with management rights under section 7106, however, an issue which was
not presented in U.S. Department of Labor, OSHA, we find that Union
Proposal 2 by requiring the Agency to negotiate over the adequacy of
parking i.e., number of spaces, for government vehicles concerns the
method, means and technology of performing work within the meaning of
section 7106(b)(1) of the Statute. The proposal would require the
Agency to acquire parking spaces for government vehicles used in
connection with an employee's performance of official duties. Matters
relating to the use of government vehicles, including parking for them,
constitute methods, means and technology of performing the agency's
work. Compare, American Federation of Government Employees, AFL-CIO,
Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety
Administration, Morgantown, West Virginia, 15 FLRA No. 170 (1984) (Union
Proposal 3) (matters pertaining to use of telephone for government
business within purview of 7106(b)(1) of the Statute). As such, the
proposal violates section 7106(b)(1). Since the Agency has not elected
to bargain on the matter, the Authority concludes that the proposal is
not within the duty to bargain.
V. Union Proposal 3
Prior to occupancy, a complete Safety and Health inspection
shall be made of the building and office space provided. Before
occupancy, all conditions observed shall be corrected. The Union
shall be a part of the inspection team.
A. Positions of the Parties
The Agency argues that: (1) the proposal is inconsistent with the
requirement under section 7101(b) of the Statute that the Statute be
interpreted in a manner consistent with an effective and efficient
Government; and (2) the Union waived its right under the parties'
agreement to bargain on the proposal by virtue of the bargaining history
of the agreement.
The Union contends that: (1) the parties' agreement does not address
pre-occupancy inspections of facilities; and (2) the proposal does
materially affect conditions of employment pertaining to safety and
health because it is the Union's obligation to insure that employees
will be moving into a hazard-free work environment from the hazard-free
environment they currently enjoy.
B. Analysis and Conclusion
The proposal is not sufficiently specific and delimited in content to
enable a negotiability determination to be made. From the proposal and
the parties' statements it is unclear: (1) whether the committee itself
will correct deficiencies based upon its findings and/or whether its
findings are binding upon management; and (2) the relative weight of
the Union's participation -- whether it is intended to be an equal,
minority or majority role. The Authority has found proposals concerning
the establishment of local health and safety committees to be within the
duty to bargain. See American Federation of Government Employees,
AFL-CIO, Council of Prison Locals and Department of Justice, Bureau of
Prisons, 11 FLRA 286 (1983) (Provision 2). Of course, proposals
including those concerning joint labor-management committees which
interject the union into the agency decision-making process through
which management exercises its reserved rights under the Statute, are
outside the duty to bargain. Such proposals, in effect, place the union
"inside" management's decision-making process, giving the union
information about and access to the discussions and deliberations of
management officials concerning protected management decisions and
actions. See National Federation of Federal Employees, Local 1421 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA
998 (1982) and National Federation of Federal Employees, Local 1001 and
Department of the Air Force, Vandenberg Air Force Base, California, 15
FLRA 804 (1984) (Provisions 2 and 3). Union Proposal 3 does not in any
event set forth sufficient specific information to enable us to reach a
reasoned decision. Thus it does not meet the conditions for review set
forth in section 7117(a)(1) of the Statute and section 2424.1 of the
Authority's Rules and Regulations, and is dismissed. Fort Bragg Unit of
North Carolina Association of Educators, National Education Association
and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA
519, 527 (1983).
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY