[ v21 p1124 ]
21:1124(129)NG
The decision of the Authority follows:
21 FLRA No. 129
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 12
Union
and
DEPARTMENT OF LABOR
Agency
Case No. 0-NG-938
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of twenty-four Union proposals. These
proposals are set forth in an Appendix to this decision.
II. Background
The Union submitted the proposals at issue to the Agency in response
to the Agency's announcement of its intention to implement a space
reduction plan in compliance with a General Services Administration
(GSA) space reduction regulation. This regulation is GSA Federal
Property Management Regulation (FPMR), Temporary Regulation D-68, which
was originally effective from March 9, 1983, until January 31, 1984, and
was extended until May 25, 1985. However, it has been superseded by
FPMR Temporary Regulation D-71, effective July 1, 1985, to June 30,
1987. 41 C.F.R. Section 101-17 (1985) at 333.
III. Positions of the Parties
The Agency does not argue that any of the twenty-four disputed
proposals is inconsistent with applicable law, rule or regulation and,
hence, is nonnegotiable. Rather, the Agency's sole contention in this
case is that it has no duty to bargain on the proposals under the
circumstances because its implementation of the GSA space reduction
regulation will have no material effect or substantial impact on
conditions of employment of bargaining unit employees. The Agency
argues that in these circumstances a requirement to bargain on the
Union's proposals would be inconsistent with the mandate of section
7101(b) that the Statute "be interpreted in a manner consistent with the
requirement of an effective and efficient Government." In support, the
Agency relies on the Seventh Circuit's decision in Internal Revenue
Service v. Federal Labor Relations Authority, 717 F.2d 1174 (7th Cir.
1983), denying enforcement of Internal Revenue Service, Chicago,
Illinois, 9 FLRA 648 (1982).
According to the Union, the disputed proposals are clear as written.
The Union did not file a Reply Brief.
IV. Analysis and Conclusion
A. Duty to Bargain
The Agency's reliance on Internal Revenue Service, 717 F.2d 1174 (7th
Cir. 1983), is misplaced as that decision concerned whether an agency's
failure to bargain in the circumstances of that case constituted an
unfair labor practice and not whether particular matters sought to be
bargained are consistent with applicable law, rule and regulations.
When a union files a negotiability appeal under section 7105(a)(2)(E) of
the Statute, section 7117(c) entitles it to a decision on the
negotiability issues in the appeal. To the extent that there are
factual issues in dispute between the parties concerning the duty to
bargain in the specific circumstances of the case, such issues should 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). Hence, the Agency's
contention that, under the circumstances, it has no duty to bargain on
the disputed proposals, is not relevant in the context of a
negotiability dispute.
B. Proposals 1-16, 18, 19, 21-24
It is well established that the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination.
See National Federation of Federal Employees, Local 1167 v. Federal
Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g
National Federation of Federal Employees, Local 1167 and Department of
the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead
Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to assume
the burden acts at its peril. Proposals 1-16, 18, 19 and 21-24
generally concern reductions in space, space allocation, the arrangement
of space, the furniture and equipment to be utilized by employees and
information related to those matters requested by the Union for use in
negotiations. The Authority has held that such matters principally
relate to the working conditions of employees and are within the duty to
bargain unless an agency demonstrates that the proposals are
inconsistent with applicable law or regulation. See, for example,
American Federation of State, County and Municipal Employees, AFL-CIO,
Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 583
(1982), enforced sub nom. Library of Congress v. Federal Labor Relations
Authority, 699 F.2d 1280 (D.C. Cir. 1983) in which various proposals
concerning bookshelf and file cabinet space, office partitions, office
doors, shower and locker facilities were found to be within the duty to
bargain because the agency did not establish that the selection of
furniture, equipment or office design had, as claimed, a technological
relationship to accomplishing or furthering the performance of the
agency's work with which the particular proposals interfered. Compare
American Federation of State, County and Municipal Employees, AFL-CIO,
Local 2910 and Library of Congress, 19 FLRA No. 130 (1985), in which
proposals concerning employee seat assignments were found to concern the
methods and means of performing work within the meaning of 7106(b)(1)
and outside the duty to bargain because the agency made the proper
showings.
The Agency in this case has made no claim whatever, and it is not
otherwise apparent, that the disputed proposals are inconsistent with
law, Government-wide rule or regulation or with an agency regulation for
which a compelling need exists. Hence, the Authority is constrained to
find Proposals 1-16, 18, 19 and 21-24 to be within the duty to bargain.
C. Union Proposals 17 and 20
Union Proposal 17 provides that the "adverse impact of space change
on performance" will be reflected by certain specific adjustments in
performance standards. Proposal 20 provides that productivity levels
will be established prior to the space changes and that they will be
measured and reduced at intervals after the changes. These proposals
are to the same effect as Union Proposal 2 found nonnegotiable in
National Federation of Federal Employees, Council of Consolidated SSA
Locals and Department of Health and Human Services, Social Security
Administration, 17 FLRA 657 (1985), petition for review filed sub nom.
Department of Health and Human Services, Social Security Administration
v. FLRA, No. 85-1601 (4th Cir. June 19, 1985). In that case, the
proposal provided that time limits for certain tasks would "be adjusted
to take into consideration the additional research and development time
needed." The Authority held that as the proposal directly addressed the
content of performance standards by requiring that time limits be
adjusted, management's authority to establish these performance
standards was substantively restricted. Thus, the Authority concluded
in Department of Health and Human Services that the proposal interfered
with the agency's right to assign work and direct employees pursuant to
section 7106(a)(2)(A) and (B) of the Statute. Hence, for the reasons
and cases cited in Department of Health and Human Services, Union
Proposals 17 and 20 interfere with the rights to assign work and direct
employees under section 7106(a)(2)(A) and (B) of the Statute and are
outside the duty to bargain.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review as it relates to
Union Proposals 17 and 20 be, and it hereby is, dismissed. IT IS
FURTHER ORDERED that the Agency shall upon request, or as otherwise
agreed to by the parties, bargain concerning Union Proposals 1-16, 18,
19 and 21-24. /*/
Issued, Washington, D.C., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding these proposals within the duty to bargain, the
Authority makes no judgment as to their merits.
APPENDIX
LOCAL 12 PROPOSALS TO ADDRESS THE ADVERSE IMPACT OF THE LMSA
SPACE
REDUCTION PROGRAM
1. Space changes in LMSA will not be implemented until full
and final consultation and negotiations have occurred between the
Department and the union.
2. Management will provide all information requested before
completing negotiations with the union.
3. LMSA will limit its space reduction in fiscal 1984 to a 10%
reduction by September 1984, as provided in GSA Regulation D-68.
4. In reducing space, the current individual space tables will
be followed by LMSA (see below). Where there must be a reduction
in individual allocations the space provided for higher grades
(supervisors-managers-executives) will be reduced to meet the
goals along with their adjoining reception areas and foyers. In
no case will individual space below 150 square feet be reduced.
TABLE OMITTED
5. To further the stated LMSA goal "THAT SPACE OCCUPIED BY
LMSA EMPLOYEES SHALL BE ARRANGED AND MAINTAINED SO AS TO
ASSURE A
QUALITY WORKING ENVIRONMENT" the following measures are proposed:
a) windows will not be blocked by private offices.
b) the "executive core" approach will be followed with private
offices located on the inner core.
c) window space will be occupied by non-supervisors.
d) space not by a window will be 10% greater to provide for an
"equalization of desirability."
e) meeting areas will not be included inside private offices
and all meeting areas will be useable by all employees on a
reservation basis.
f) in every office a number of common areas will be provided
for small meetings with clients, contractors, task forces,
colleagues, or for collating.
g) space for clericals or anyone whose space is not defined by
walls or partitions will be shown on the plans by dotted lines and
marked on the floor at the corners with carpet tacks in the rug.
h) the practice of placing clericals in what are essentially
passageways will not be followed.
6. Employees may choose whether they wish to have open space
or closed space where these choices are posed. Employees will not
be limited in their use of partitions in open space. Clericals
may elect to have partitions.
7. Reasonable official time will be authorized for the Steward
Committee to meet with employees in each office (space) to review
management plans and solicit comments and develop alternatives, if
appropriate.
8. In each office, after managment has prepared a plan, copies
will be provided the union and all employees.
9. Management will cancel unnecessary movement of offices from
one location to another when the current office space is adequate
to accomplish the mission.
10. Management will provide the union copies of all floor
plans for changes at least 30 days prior to implementation of a
space change. If floor plans are changed this will initiate
another 30 day period.
11. Employees will be provided a written notice at least 10
working days in advance of a move. Packing boxes used to relocate
employees, will be provided at least 5 working days in advance of
the actual move.
12. In making plans, the prints will show space allowed for
coat racks, special equipment, xerox machines, library shelves and
other fixtures that are a part of the office.
13. The Labor Management Relations Committee will study the
sound and ventilation problems of smaller space, including, but
not limited to, the use of "white sound," sound deadening
materials, drapes, comparative partitions and so forth.
14. The new space arrangements will include self-determination
in each office space for smoking rules. Such rules may be
initiated by the union or by the supervisor and will be
established to the greatest extent possible by consent of all in
the space and in the framework of Article 4, Sections 2 and 4.
The right of any employee to a smoke free environment will be so
addressed.
15. LMSA will provide Local 12 with an office for the use of
the Steward Committee and bargaining unit employees.
16. New furniture, drapes, rugs and decorations will not be
selected until the union has been provided catalogs and/or
samples.
17. Adverse impact of space change on performance will be
reflected in appropriate adjustments in performance standards,
including a 25% increase in deadlines and a 25% reduction in
objective minimum standards such as "correct 85% of the time."
18. Dividers will be noiseproof.
19. White sound will be re-introduced.
20. Current productivity levels will be established prior to
space changes and will be again measured 1 year and 2 years after
space changes. All productivity expectations and standards will
be reduced accordingly.
21. New furniture selections will not be made until choices
and catalogs are made available to the union and to employees.
22. No reduction in space will be implemented until new
furniture is available.
23. Space changes in LMSA will be implemented gradually as
need for moves and reorganizations occur.
24. All prints will show the number of square feet (by number)
for each individual's space and be a clear copy.