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52 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 49

(Union)

and

U.S. DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS

SOUTH PACIFIC DIVISION

SAN FRANCISCO, CALIFORNIA

(Agency)

0-NG-2214

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

December 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members. ⁽¹⁾

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal establishing an organizational structure for the reorganization of the Agency's South Pacific Division Laboratory (Division Lab). For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7106(a)(1) of the Statute.⁽²⁾

II. Proposal

Bargaining pertaining to the reorganization of the South Pacific Division Laboratory, Sausalito, California shall be conducted based upon the organization structure proposal submitted under Union letter dated August 11, 1994 (Serial No. 1319).⁽³⁾

III. Background

The proposal was offered by the Union in response to the Agency's proposed reorganization of its Division Lab in Sausalito, California. The Agency planned to divide the existing laboratory,⁽⁴⁾ a single unit, into two separate laboratories, with a support group and an administrative unit. See Appendix B. The Agency informed the Union that the reorganization would take place in October 1994. However, the record does not indicate whether the reorganization ever took place.

IV. Positions of the Parties

The Agency claims that the proposal is outside the duty to bargain because it directly interferes with management's right to determine its organization under section 7106(a)(1) of the Statute. The Agency also claims that the proposal is outside the duty to bargain under OPM because it concerns the conditions of employment of supervisors or management officials, or employees in units of exclusive recognition represented by other unions. The Agency argues that, because the proposal is outside the duty to bargain on these grounds, VAMC, Lexington should not be applied to this proposal.

The Union acknowledges that the proposal, "taken by itself," interferes with management's right under section 7106(a)(1) to determine its organization, but argues that section 7106(b)(1) modifies section 7106(a)(1). Union Response at 2. According to the Union, the proposal cannot concern management's right to determine its organization under section 7106(a)(1) because it concerns an "organizational subdivision" under section 7106(b)(1). Moreover, the Union contends that because the proposal concerns a subunit organizational structure of small, independent business units under a common "umbrella," as well as the pooling of work forces, job sharing, and supplemental resources, it concerns the methods and means of performing work under section 7106(b)(1). Union Supplemental Submission at 2. The Union maintains that the basic issue in this case is whether, under Executive Order 12871, unions have the latitude to expand upon agency reorganization plans by proposing an organizational structure that more adequately ensures the effective and efficient operation of the Government within the meaning of section 7101(a)(2) of the Statute. Finally, the Union disputes the Agency's claim that the proposal is outside the duty to bargain under OPM.

V. Analysis and Conclusions

A. Meaning of the Proposal

The proposal specifies that any bargaining on the reorganization of the Division Lab be based on the Union's proposed organizational chart. That chart specifies various subdivisions of a proposed "Sausalito Complex" (the Complex) and prescribes the relationships among those subdivisions. It also identifies the personnel or positions to be assigned to those subdivisions.

As explained by the Union, the proposal takes functions that are performed at the Division Lab in Sausalito and at other offices in the South Pacific Division (Division), and reconfigures them into small, independent units within a common umbrella organization known as the Complex. Specifically, the proposal would: (1) create a new, unstaffed site manager unit at the Complex; (2) separate the existing Division Lab into two distinct laboratories; (3) create a contingency workforce subdivision; (4) establish a shared labor pool unit; and (5) result in the reassignment of existing Division and District office personnel. According to the Union, its bargaining objective is to obtain the Agency's agreement to an organizational structure and then to negotiate on individual unit staffing levels, job descriptions, and grade structure. As interpreted by the Union, therefore, the proposal concerns two matters: (1) an organizational structure for the Complex; and (2) a staffing pattern for various of the organizational elements of that structure.

The Union's explanation is consistent with the plain wording of the proposal and, therefore, we will use that explanation in construing the proposal's meaning and determining whether it 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).

B. The Proposal Is Outside the Duty to Bargain Under Section 7106(a)1)

In American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA No. 78 (1996) (SSA, Mid-America) (Member Armendariz, concurring), the Authority recently set forth the framework for determining whether proposals having two or more inseparable requirements are within the duty to bargain under the Statute when the parties make conflicting claims as to whether the proposal is outside the duty to bargain under section 7106(a) of the Statute or is bargainable at the agency's election under section 7106(b)(1). Under the framework explained in SSA, Mid-America, and for the reasons fully set forth therein, when analyzing such a proposal it is necessary first to determine which requirement is dominant. Id., slip op. at 7. We then rely on that requirement for purposes of determining the negotiability of the proposal. If the dominant requirement relates to a subject encompassed by section 7106(b)(1), the proposal is negotiable at the election of the agency.

The framework set forth in SSA, Mid-America applies here because the proposal imposes two interrelated and inseparable requirements on the Agency: (1) establishment of the organizational structure for the proposed Complex set forth in Appendix A, and (2) implementation of the staffing changes proposed for that organizational structure. Because the proposed staffing pattern depends for its viability on the proposed organizational structure, we find, consistent with SSA, Mid-America, that the dominant requirement of the proposal is the establishment of that structure.

The establishment of an organizational structure does not equate to the staffing of that structure. SSA, Mid-America, slip op. at 9. Thus, the dominant requirement of the proposal does not concern the numbers, types, and grades of employees or positions assigned to the elements of the proposed organizational structure. Id. In addition, there is no basis on which to conclude that the establishment of an organizational structure, standing alone, constitutes a methods and means of performing work.⁽⁵⁾ Consequently, the dominant requirement of the proposal does not concern the methods and means of performing work. See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA No. 79, slip op. at 6-7 (1996) (Member Armendariz, concurring in part). Accordingly, the proposal does not concern a matter negotiable at the election of the Agency under section 7106(b)(1) of the Statute.

We turn to the question of whether the proposal affects management's right to determine its organization within the meaning of section 7106(a)(1) of the Statute, as claimed by the Agency. Because the proposal in this case prescribes the organizational elements of the proposed Complex, it is similar in effect to the proposals in SSA, Mid-America, which we found to impermissibly affect management's right under section 7106(a)(1). Consequently, we find, consistent with SSA, Mid-America, that the proposal in this case also impermissibly affects management's right under section 7106(a)(1).

We reject the Union's argument that the proposal is within the duty to bargain because it is consistent with section 7101 of the Statute. To the extent that the Union's argument addresses the negotiability, as opposed to the merits, of the proposal, it would, in effect, apply section 7101 as a separate negotiability standard. The Union provides no basis for concluding that section 7101 should be applied in this manner. Moreover, neither the Authority nor the courts have applied that section as a separate standard for determining negotiabilty under section 7106 of the Statute. Rather, it has been relied on only to interpret other sections of the Statute. See, e.g., Defense Language Institute v. FLRA, 767 F.2d 1398, 1401 (9th Cir. 1985); National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982). Consequently, we find that the Union's argument provides no basis for finding that the proposal is within the duty to bargain.

Accordingly, as the Union does not contend that the proposal is an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), we find that the proposal is not within the duty to bargain. SSA, Mid-America, slip op. at 10.

VI. Order

The Union's petition for review is dismissed.⁽⁶⁾

Member Armendariz, concurring:

I concur in my colleagues' conclusion that the proposal in this case is outside the duty to bargain under section 7106(a)(1) of the Statute. However, I do not base that conclusion on the ground that the organizational structure for the proposed Sausalito Complex is the dominant requirement of the proposal. Rather, consistent with my concurrence in American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 78 (1996), I conclude that the proposal is outside the duty to bargain because it impermissibly affects management's right to determine its organization under section 7106(a)(1) of the Statute. Specifically, I find that the organizational structure portion of the proposal is a section 7106(a)(1) matter, which is not also within section 7106(b)(1), and thus it controls the negotiability of the proposal, notwithstanding the fact that it may or may not be the "dominant requirement." Moreover, because I agree with my colleagues that the staffing pattern portion of the proposal is not severable, I do not address that aspect of the proposal. Finally, I concur in my colleagues' rejection of the Union's argument based on section 7101 of the Statute.

Editor's Note: The Appendices to 52 FLRA No. 81 which consists of 5 charts and will appear in bound volume 52 on pages 846 through 850, is not available in electronic format.

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

1. Member Armendariz' concurring opinion is set forth at the end of this decision.

2. While this case was pending, the Authority issued its decisions in 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, Washington, D.C., 51 FLRA 491 (1995) (OPM), petition for review filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995). After those decisions were issued, the Authority directed the parties in this case to address the applicability of the decisions to this case. Both parties filed supplemental briefs.

3. The Union's letter attached an organizational chart, including designation of certain positions to be assigned to the proposed organizational subdivisions. The chart is set forth in Appendix A to this decision. It represents the Union's response to an Agency reorganization plan. The Agency plan is set forth in Appendix B.

4. The organizational structure of the existing laboratory is set forth in Appendix C to this decision.

5. The Authority has construed "method" to refer to "the way in which an agency performs its work." American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 343 (1993) (citation omitted). The term "means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id.

6. Because we find that the proposed organizational structure is outside the duty to bargain, we do not address the other questions raised by the parties' submissions.

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