American Federation of Government Employees, Local 2, AFL-CIO (Union) and Department of the Army, Military District of Washington (Agency)
[ v04 p450 ]
04:0450(60)NG
The decision of the Authority follows:
4 FLRA No. 60 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2 Union and DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON Agency Case No. O-NG-107 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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) (5 U.S.C. 7101 ET SEQ.). UNION PROPOSAL THE EMPLOYER AND THE UNION MUTUALLY AGREE THAT THE PURPOSE AND INTENT OF THE PROVISONS CONTAINED HEREIN ARE TO ASSURE THAT MERIT PROMOTION PRINCIPLES ARE APPLIED IN A CONSISTENT MANNER AND UNDER THE SPECIFIC CONDITIONS SET FORTH IN THIS ARTICLE AND/OR MDW REGULATION 690-335 FOR POSITIONS WITHIN THE UNITS OF EXCLUSIVE RECOGNITION HELD BY AFGE LOCAL 2 AND INCLUDE ANY POSITIONS FOR WHICH BARGAINING UNIT EMPLOYEES ARE ELIGIBLE FOR (SIC) AND ARE ADMINISTERED BY THE RESPECTIVE RECRUITING AND PLACEMENT DIVISION OF CIVILIAN PERSONNEL FOR THE MILITARY DISTRICT OF WASHINGTON. (THE UNDERLINED PORTION OF THE PROPOSAL IS IN DISPUTE.) QUESTION HERE BEFORE THE AUTHORITY THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE UNION'S PROPOSAL IS OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, BECAUSE IT CONCERNS MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. OPINION CONCLUSION AND ORDER: TO THE EXTENT THAT THE PROPOSAL CONCERNS MERIT PROMOTION PROCEDURES FOR POSITIONS WITHIN THE BARGAINING UNIT, IT IS WITHIN THE OBLIGATION TO BARGAIN UNDER SECTION 7117 OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT THE AGENCY SHALL, UPON REQUEST (OR AS OTHERWISE AGREED BY THE PARTIES) BARGAIN CONCERNING THE PROPOSAL TO THIS EXTENT. /1/ TO THE EXTENT THAT THE PROPOSAL WOULD APPLY MERIT PROMOTION PROCEDURES TO THE FILLING OF POSITIONS OUTSIDE THE BARGAINING UNIT, IT IS BARGAINABLE ONLY AT THE ELECTION OF THE AGENCY AND THE AGENCY HAS DECLINED TO BARGAIN ON THE MATTER. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE DISMISSED TO THIS EXTENT. REASONS: THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE IS DERIVED IN PART FROM SECTION 7114(A)(4), WHICH PROVIDES, IN RELEVANT PART: SEC. 7114. REPRESENTATION RIGHTS AND DUTIES * * * * (4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE UNIT IN THE AGENCY, THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD FAITH FOR THE PURPOSES OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT . . . . SECTION 7114(B)(2) FURTHER STATES THAT THE DUTY TO NEGOTIATE IN GOOD FAITH SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY CONDITION OF EMPLOYMENT." "CONDITIONS OF EMPLOYMENT" ARE DEFINED IN SECTION 7103(A)(14) AS FOLLOWS: SEC. 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 II 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 . . . . SECTION 7117(A)(1) FURTHER DESCRIBES THE DUTY TO BARGAIN IN GOOD FAITH AS FOLLOWS: SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO CONSULT (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION. THUS, THE SCOPE OF THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE EXTENDS TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, AFFECTING EMPLOYEES IN A UNIT OF EXCLUSIVE RECOGNITION UNLESS THE MATTERS PROPOSED FOR BARGAINING ARE INCONSISTENT WITH FEDERAL LAW OR GOVERNMENT-WIDE RULE OR REGULATION. THE STATUTE FURTHER DELINEATES THE DUTY TO BARGAIN IN SECTION 7103(A)(12) WHICH DEFINES "COLLECTIVE BARGAINING" AS FOLLOWS: SECTION 7103. DEFINITIONS; APPLICATION (A) FOR THE PURPOSE OF THIS CHAPTER-- * * * * (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES . . . . IT IS CLEAR, THEREFORE, THAT THE DUTY TO BARGAIN APPLIES ONLY TO THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE BARGAINING UNIT. THE DISPUTED PORTION OF THE INSTANT PROPOSAL PROVIDES THAT THE NEGOTIATED MERIT PROMOTION PROCEDURES APPLICABLE TO THE BARGAINING UNIT REPRESENTED BY AFGE LOCAL 2 WILL BE APPLIED TO ALL POSITIONS "FOR WHICH BARGAINING UNIT EMPLOYEES ARE ELIGIBLE." ACCORDING TO THE AGENCY'S SUBMISSION, THE MILITARY DISTRICT OF WASHINGTON (MDW) INCLUDES 24 BARGAINING UNITS REPRESENTED BY FIVE DIFFERENT UNIONS, INCLUDING LOCAL 2, AND CONTAINS APPROXIMATELY 4,500 POSITIONS. LOCAL 2, HOWEVER, IS THE EXCLUSIVE REPRESENTATIVE FOR ONLY NINE OF THE 24 BARGAINING UNITS CONTAINING APPROXIMATELY 2,800 POSITIONS. THUS, BY THE LANGUAGE OF THE DISPUTED PORTION OF THE UNION'S PROPOSAL, WHENEVER EMPLOYEES IN THE BARGAINING UNITS REPRESENTED BY LOCAL 2 ARE ELIGIBLE FOR CERTAIN NON-BARGAINING UNITS POSITIONS, I.E., POSITIONS IN ANY OF THE OTHER 15 BARGAINING UNITS NOT REPRESENTED BY LOCAL 2 OR SUPERVISORY POSITIONS WHICH ARE SPECIFICALLY EXCLUDED FROM ALL BARGAINING UNITS UNDER THE STATUTE, /2/ THE MERIT PROMOTION PROCEDURES APPLICABLE TO EMPLOYEES REPRESENTED BY LOCAL 2 WOULD BE EXTENDED TO THE FILLING OF SUCH NON-BARGAINING UNIT POSITIONS. IN THIS REGARD, THE AUTHORITY HELD IN INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980), THAT THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. WHILE AN AGENCY IS NOT PROHIBITED FROM BARGAINING ON MERIT PROMOTION PROCEDURES FOR NON-BARGAINING UNIT POSITIONS, AND MAY, AT ITS ELECTION, DO SO, IT IS NOT OBLIGATED TO BARGAIN ON SUCH MATTERS. ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY CERTIFICATE OF SERVICE COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED: MR. RONALD D. KING DIRECTOR CONTRACT & APPEALS DIVISION AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 1325 MASSACHUSETTS AVENUE,N.W. WASHINGTON, D.C. 20005 MR. DAVID H. GREEN CHIEF, EMPLOYEE MANAGEMENT RELATIONS OFFICE OF THE ASSISTANT SECRETARY MANPOWER AND RESERVE AFFAIRS, ROOM 3D254, THE PENTAGON WASHINGTON, D.C. 20301 MR. WILLIAM J. SCHRADER CHIEF LABOR AND EMPLOYEE RELATIONS DIVISION HQDA (DAPE-CPL) WASHINGTON, D.C. 20310 --------------- FOOTNOTES$ --------------- /1/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN TO THE EXTENT IT CONCERNS MERIT PROMOTION PROCEDURES FOR POSITIONS WITHIN THE BARGAINING UNIT, THE AUTHORITY MAKES NO JUDGMENT ON THE MERITS OF THIS PART OF THE PROPOSAL. /2/ SECTION 7112(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS: SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION REPRESENTATION * * * * (B) . . . NOR SHALL A UNIT BE DETERMINED TO BE APPROPRIATE IF IT INCLUDES-- (1) . . . ANY . . . SUPERVISOR . . . .