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52 FLRA No. 80

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 49

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY CORPS OF ENGINEERS

SOUTH PACIFIC DIVISION

SAN FRANCISCO, CALIFORNIA

(Agency)

0-NG-2235

0-NG-2236

0-NG-2238

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Cases

These cases are before the Authority on negotiability appeals filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeals concern the negotiability of three proposals addressing the Agency's proposed reorganization of the Directorate of Programs and Project Management. In addition to filing statements of position and reply briefs in each case, the parties filed, at the Authority's request, supplemental briefs addressing the applicability of National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington) and American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, 51 FLRA 491 (1995) (OPM), petition for review filed, No. 95-1593 (D.C. Cir. 1995) to these cases.

For the reasons that follow, we find that the proposals are outside the duty to bargain because they directly implicate conditions of employment of supervisory personnel.

II. Preliminary Matter

Where cases "involve the same parties, arise out of the same negotiations, and present similar negotiability issues," the Authority has treated the cases together. American Federation of Government Employees, Local 3884 and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 199 (1990), aff'd in part and rev'd in part as to other matters sub nom. American Federation of Government Employees, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir. 1991). The three proposals in these cases address similar matters arising from the same Agency reorganization. Because the three proposals are interrelated and similar arguments are advanced by the parties with respect to each proposal, we have consolidated the cases for consideration.

III. Background

The Agency planned a reorganization of the Directorate of Programs and Project Management into the Directorate of Programs Management. Under this plan, there would be four divisions within the new organization. Two of the divisions, the Military/SFO (Support for Others) Division and the Civil Program Development Division, will each have a supervisory general engineer. The two remaining divisions, the Environmental Restoration Division and Civil Programs Management Division, will be under the direct supervision of either the Directorate's Director or Deputy Director. In addition, the latter two divisions will have an engineer who functions as a team leader.

IV. The Proposals ⁽¹⁾

Proposal 1 (Case No. 0-NG-2236)

The supervisory relationship of the Chief, Military/SFO Division to the GS-13 project managers in that division shall be similar to the team leader to the GS-13 project manager relationship in the Environmental Restoration and Civil Programs Management Divisions.

Proposal 2 (Case No. 0-NG-2238)

Similar to the GS-13 project managers in the Environmental Restoration Division and Civil Programs Management Division, the GS-13 project managers in the Military/SFO Division shall have either the Director or Deputy Director, Directorate of Programs Management as their immediate first line supervisor.

Proposal 3 (Case No. 0-NG-2235)

Team leaders in the Environmental Restoration Division (i.e., Job Description G2804) and Civil Programs Management Division (i.e., Job Description G2806) shall have no de facto first line supervisor responsibilities over the GS-13 project managers in those respective divisions.

V. Positions of the Parties

A. Union

The Union contends that the Agency may elect to bargain over each proposal under section 7106(b)(1) of the Statute and that section 7106(b)(1) prevails over any section 7106(a) rights implicated by the proposals. Specifically, the Union argues that the proposals concern the types of positions assigned to an organizational subdivision and the methods and means of performing work. The Union maintains that pursuant to a memorandum of agreement between the parties, the Agency has elected to bargain over section 7106(b)(1) matters. In response to an Agency argument that bargaining over the proposals is prohibited because they pertain to supervisory personnel, the Union asserts that the reach of section 7106(b)(1) is not limited to positions within the bargaining unit.

Responding to the Authority's order to discuss VAMC, Lexington and OPM, the Union contends that under the former, section 7106(b)(1) controls the negotiability of this proposal. The Union contends that OPM is not applicable where, as in these proposals, a permissive subject of bargaining is concerned. The Union asserts that even if OPM applies to permissive subjects of bargaining, permitting bargaining on these proposals is consistent with the intent of Congress that underlies the Statute. Alternatively, the Union asserts that OPM has no bearing on this case because the proposals would create non-supervisory positions.

In addition, with respect to Proposal 3, the Union disagrees with the Agency's argument that the proposal is outside the duty to bargain because it pertains to conditions of employment of supervisory personnel. In this regard, the Union submits that the Agency's position is contrary to its own classification findings regarding the two GS-14 positions referred to in the proposal wherein the Agency found that "the official title of '[s]upervisor' is not warranted." Union's Response to Agency's Petition at 6.

B. Agency

The Agency contends that the proposals are not within the duty to bargain because they pertain to conditions of employment of supervisory personnel and violate management's right to determine the organization of the Agency and to assign work under section 7106(a)(1) and 7106(a)(2)(B).

In response to the Authority's order, the Agency asserts that under OPM, the proposals are not within the duty to bargain because they directly implicate conditions of employment of supervisory personnel. The Agency further maintains that in view of this, the analytical framework set forth in VAMC, Lexington is not applicable.

With respect to the two team leader positions referred to in Proposal 3, the Agency states that "while not titled supervisors, [these positions] have supervisory responsibilities along with significant staff level program management responsibilities so as to meet the definitions of both supervisory and management official[s] as defined in 5 USC sections 7103(a)(10) and (11)." Agency's Statement of Position at 2. Therefore, the Agency submits that the positions are outside the bargaining unit and the "proposal establishes certain conditions of employment (the lack of supervisory responsibility for the GS-14s and increased supervisory responsibilities for the Director or Deputy Director) for these non-bargaining unit positions." Id. As support for its position the Agency relies on American Federation of Government Employees, Local 2879, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074 (1994).

VI. Analysis and Conclusions

A. The Meaning of the Proposals

In interpreting a disputed proposal, the Authority first looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995).

Proposals 1 and 2 concern the Military/SFO Division, one of four divisions that the Agency plans in the new organization. Under the Agency's plan, the Military/SFO Division would be staffed with a supervisory GS-14 general engineer,⁽²⁾ three GS-13 general engineers who serve as "project managers," three program analysts and two secretaries.

With respect to Proposal 1, the Union's explanation in its earlier submissions differs from that in the supplemental submission filed in response to the Authority's order to address VAMC, Lexington and OPM. Specifically, in the earlier submissions, the Union states that the proposal would eliminate the GS-14 general engineer's supervisory responsibilities only with respect to the three GS-13 general engineers and leave those responsibilities intact with respect to the other employees in the Military/SFO Division. In its supplemental submission, however, the Union describes the proposal as converting the GS-14 general engineer position from a supervisory (non-bargaining unit) position to a non-supervisory (bargaining unit) position.

Proposal 1 is silent with respect to the GS-14's supervisory relationship to the program analysts and secretaries assigned to the Military/SFO Division. When a proposal is silent as to a particular matter, a union's statement of intent will be adopted so long as the statement otherwise comports with the proposal's wording. National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). The Union's explanation in its supplemental submission that this proposal converts the GS-14 general engineer from a supervisory to a non-supervisory position is not inconsistent with the wording of the proposal. Therefore, for purposes of this decision, we adopt the interpretation proffered in the Union's supplemental submission.⁽³⁾ Cf. Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 511 (1987) (where two differing explanations of a proposal were consistent with the language of the proposal, the Authority adopted explanation that was proffered in union's reply brief, viewing it as a repudiation of prior explanation contained in union's petition for review), rev'd as to other matters sub nom. Department of Defense Dependents Schools v. FLRA, 863 F.2d 988 (D.C. Cir. 1988), vacated, 911 F.2d 743 (D.C. Cir. 1990). Based on this interpretation, this proposal would change the GS-14 general engineer position in the Military/SFO Division from a supervisory to a non-supervisory position.

With respect to Proposal 2, the Union explains that "the intent of this proposal is to reduce by one level, the layers of supervision the three (3), GS-13 general engineers in the Military/SFO Division must operate under." Petition at 1. The Union states that its intent underlying that proposal is to standardize the reporting and supervisory structure in three divisions. Thus, under the proposal, each of the engineers would be directly supervised by a GS-15 Supervisory General Engineer (Deputy Director) or SES Director.

Proposal 3 concerns two of the other planned divisions: Environmental Restoration and Civil Programs Management. The Union explains that its "intent is to eliminate all de facto first line supervisory responsibilities from the two (2), GS-14 general engineers, one in the Environmental Restoration Division and the other in the Civil Programs Management Division." Id.

B. The Proposals Directly Implicate the Working Conditions of Supervisors

Proposals that directly implicate supervisory personnel by regulating their terms and conditions of employment are not within the duty to bargain. E.g., U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1441-42 (D.C. Cir. 1992) (Cherry Point); OPM, 51 FLRA at 508. In contrast, proposals that principally relate to the conditions of employment of bargaining unit employees are not removed from the mandatory scope of bargaining simply because they have some impact on non-bargaining unit personnel such as supervisors. See Cherry Point, 952 F.2d at 1440-41.

Proposals 1 and 2 effectively remove the supervisory status and attendant responsibilities from a position that has been designated as supervisory and convert the position to a non-supervisory position. In so doing, both proposals directly determine conditions of employment of supervisory personnel and, consequently, are not within the duty to bargain. See OPM, 51 FLRA at 513 (proposal establishing a competitive area that includes supervisory personnel directly determines the working condtions of those personnel and is not within the duty to bargain). Cf. American Federation of Government Employees v. FLRA, 841 F.2d 1165, 1167 (D.C. Cir. 1988) (proposal concerning the filling of supervisory positions, including temporary appointments, is negotiable only at the election of the agency); National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290, 292 (1980) (proposal placing conditions on filling of supervisory and management positions with bargaining unit employees is outside the duty to bargain).

As with Proposals 1 and 2, Proposal 3 purports to regulate Agency management's determination concerning the supervisory status and attendant responsibilities of certain positions, and, for that reason, is not within the duty to bargain. Although Proposal 3 applies to different divisions and different supervisory relationships, the effect of all three proposals is to ensure that the GS-13 project managers will not be supervised by the GS-14 general engineers. As discussed above, Proposals 1 and 2 would remove the supervisory status and attendant responsibilities from the GS-14 general engineer position in the Military/SFO Division. Rather than seeking to remove supervisory status and responsibilities, Proposal 3 would preclude the Agency from conferring supervisory status and supervisory responsibilities upon GS-14 general engineer team leaders in the Environmental Restoration and Civil Programs Management Divisions. We find that there is no meaningful distinction among these proposals as they accomplish the same objective--to have the Director or Deputy Director directly supervise the employees, and perform all supervisory responsibilities, in the divisions. Thus, we conclude, consistent with our holding as to Proposals 1 and 2, that Proposal 3 is not within the duty to bargain.⁽⁴⁾

Section 2424.10(b) of the Authority's Regulations provides that if the Authority finds that the duty to bargain either does not extend to the matter proposed to be negotiated or extends to the matter proposed to be bargained only at the election of an agency, it shall so state and issue an order dismissing the petition in the case. Proposals determining the conditions of employment of supervisors are negotiable at the election of an agency. American Federation of Government Employees, Local 3302 and Social Security Administration, 52 FLRA 677, 680-82 (1996) (Member Armendariz concurring) (Social Security Administration). Thus, pursuant to section 2424.10, we dismiss the petitions for review as to these proposals. Cf. VAMC, Lexington, 51 FLRA at 394 (where Authority finds that a proposal is negotiable at the election of an agency under section 7106(b)(1), the Authority dismisses the petition for review and does not address claims that there has been an election to bargain).

We do not address the other questions raised by the parties' submissions as they would make no difference to the disposition of these proposals. In particular, the parties' arguments raise the issue of whether the terms of section 7106(b)(1) encompass supervisory personnel. Under section 2424.10(b) of the Authority's existing Regulations, which requires dismissal of a petition for review if the Authority finds that the duty to bargain extends to the matter proposed to be bargained only at the election of the agency, this question is not dispositive in these cases and, consequently, addressing it would result only in dicta. Moreover, it is not apparent how, under existing Authority regulations, the issue of whether the terms of section 7106(b)(1) encompass supervisory personnel would be dispositive in resolving other negotiability appeals. In these circumstances, if parties who are attempting to define the scope of elective bargaining under section 7106(b)(1) need guidance on this question, we would entertain a request for a general statement of policy or guidance on this issue pursuant to part 2427 of the Authority's Regulations.⁽⁵⁾

VII. Order

The Union's petitions for review are dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. To facilitate analysis, the proposals are numbered and discussed in an order that differs from the sequential docket numbers.

2. Based on the parties' submissions, the supervisory GS-14 general engineer is the "Chief, Military/SFO Division" to which Proposal 1 refers.

3. Adopting the Union's later description of Proposal 1 does not result in a different outcome than would have occurred had the earlier description been adopted. Whether the proposal removes from the GS-14 general engineer supervisory responsibilities as to some or all of the employees in the Military/SFO Division, the proposal directly implicates the conditions of employment of supervisory personnel and, for the reasons discussed infra, is outside the duty to bargain.

4. Whether the Agency previously regarded the positions as supervisory for classification purposes is not determinative. Rather, the critical aspect of the proposal is that it precludes the Agency from conferring any supervisory responsibilities upon the team leaders in the future. In this regard, we find distinguishable National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 45 FLRA 1132, 1136-37 (1992) (NFFE), which concerned a proposal for assigning supervisory backups. Unlike the proposals before us, the proposal in NFFE concerned the temporary performance of supervisory functions, not the permanent supervisory status of, and assignment of supervisory responsibilities to, certain positions.

5. In Member Armendariz' view, the issue of whether the terms of section 7106(b)(1) encompass supervisory personnel should be addressed in a case if that issue would be dispositive in the case. If there is no case in which the issue would be dispositive, he would see no need to entertain a request for a general statement of policy or guidance on the issue.

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