[ v55 p995 ]
55 FLRA No. 161
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-45
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY, EASTERN
REGION, VIRGINIA BEACH, VIRGINIA
(Agency)
0-NG-2446
______
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
September 30, 1999
______
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition contains five proposals that were submitted in response to the Agency's decision to reassign employees from one commissary to another due to budgetary constraints. [n1] The Agency filed a statement of position, and the Union filed a response.
For the reasons that follow, we find that Proposals 1 and 5 constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute, and we direct the Agency to bargain over those proposals. We find that Proposals 2, 3, and 4 are negotiable at the election of the Agency under section 7106(b)(1) of the Statute, and pursuant to section 2424.10 of the Authority's Regulations, we dismiss the Union's petition with regard to those proposals. [n2]
II. Background
The Agency notified the Union that, due to budgetary changes, three encumbered positions were to be reassigned from the Norfolk commissary to the Oceana commissary. The Agency proposed the following procedure for determining the individuals who would be reassigned:
Section 2. Once Management has determined that all factors are equal among the considered candidates, volunteers will be solicited from this group. If no volunteers are received, then the least senior person from this group, based on service computation date, will be reassigned. If more than one volunteer is received, the most senior person, based on service computation date, will be reassigned.
Section 3. It is recognized that the above procedure applies only to reassignments which are necessary to remedy situations where one store is overstaffed and another store is understaffed and reassignments are necessary to even out the staffing levels at the two stores. Such actions are separate from reassignments that occur during a reduction in force, a reorganization or a transfer of function, which are covered under Article 34 of the Master Agreement.
Petition at 2.
The Union presented the Agency with the following proposals, which the Agency declared nonnegotiable:
Proposal 1:
The current staffed employees will not be reduced lower than the already negotiated block sheet of employees.
Proposal 2:
The Agency and the Union will do a joint study to determine the most efficient and productive way to meet the budget requirement.
Proposal 3:
A consensus will be taken between the parties and the decision shall be a signed agreement binding by both parties.
Proposal 4:
If a consensus cannot be reached by item two (2) above, then we would go into impasse proceeding beginning at mediation. [ v55 p996 ]
Proposal 5:
The work force shall remain status-quo and fully staffed until bargaining is completed by the Union.
Response at 2.
III. Preliminary Matter
The Agency argues that the Union's petition for review should be dismissed as deficient under 5 C.F.R. § 2424.4 because the Union failed to provide an explicit statement of the meaning of the proposals.
Section 2424.4 of the Authority's Regulations requires that a petition for review contain an explicit statement of the meaning of the proposal. [n3] The Authority has found that a petition for review complied with section 2424.4(a) of the Regulations where the required statement of meaning was contained in the amended petition, rather than in the initial petition, see, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of Government Financial Operations, 21 FLRA 652 (1986), and where the union provided information concerning the intended effect and operation of a proposal in "[b]oth . . . its petition [for review] and response to the [a]gency's statement[.]" International Organization of Masters Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 347 (1995).
In this case, the information necessary to comply with the Regulations was contained in the Union's response, rather than its petition. However, the Authority's decisions provide support for concluding that deficiencies in a union's initial petition may be cured by subsequent filings, including its response to an agency's statement of position. In addition, the Union's response provides significantly more information than the Authority previously found sufficient (when contained in a petition for review) to satisfy the Regulations. See International Federation of Professional and Technical Engineers and U.S. Department of the Interior, Bureau of Reclamation, Denver Office, Denver, Colorado, 43 FLRA 998, 999 (1992). Accordingly, consistent with the above-cited precedent, we deny the Agency's request that the Union's petition for review be dismissed.
IV. Proposals 1 and 5
A. Positions of the Parties
1. Union
The Union argues that Proposals 1 and 5 are intended to delay implementation of the reassignments pending resolution of the Union's proposals. Therefore, according to the Union, Proposals 1 and 5 are procedures for implementing the changes pending completion of bargaining, pursuant to section 7106(b)(2) of the Statute. The Union claims that the Authority has "held clearly and explicitly, on several occasions" that "a proposal is a negotiable procedure if it request an agency to maintain the status quo until it has fulfilled its bargaining obligations." Union Response at 7 (citations omitted).
2. Agency
The Agency argues that the proposals would preclude management from moving the work of employees' positions from one location to another, which would violate management's right to determine its organization. The Agency also argues that the proposals violate management's right to hire and assign employees under section 7106(a)(2)(A) of the Statute because they affect management's right to determine whether to fill vacant positions. The Agency argues that the proposals are neither procedures under 7106(b)(2) nor appropriate arrangements under section 7106(b)(3).
B. Meaning of Proposals 1 and 5
Proposal 1, as worded, requires that the current staff of employees not be reduced "lower than the already negotiated block sheet of employees." Petition at 2. As worded, Proposal 5 requires the Agency to maintain the current work force until bargaining is completed. As the Union's statement that both of the proposals are intended "to delay implementation of the reassignments pending resolution of the Union's proposals[,]" Response at 7, comports with the wording of the proposals, we adopt it for the purpose of assessing whether the proposals are within the duty to bargain. See, e.g., National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, Alabama, 53 FLRA 941, 950 (1997) (Fort Rucker) (where a proposal is silent as to a particular matter, a union statement clarifying the matter will be adopted if it comports with the wording of the proposal). Accordingly, we construe Proposals 1 and 5 as delaying implementation of the dis- [ v55 p997 ] puted reassignments until the completion of bargaining. [n4]
C. Analysis and Conclusions
The Authority has held that, with an exception not alleged to be relevant here [n5] , a proposal that requires only that an agency delay the exercise of a management right pending the completion of bargaining constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 240-41 (1993). See also National Association of Government Employees, Local R1-109 and Department of Veterans Affairs Medical Center, Newington, Connecticut, 53 FLRA 403, 418 (1997) (VAMC, Newington); American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 131-34 (1990). Neither party questions that precedent or its application to this case. See VAMC, Newington, 53 FLRA at 418.
As construed, Proposals 1 and 5 would delay the Agency's reassignment of positions pending the completion of bargaining. Therefore, consistent with the foregoing precedent, we find that the proposals constitute negotiable procedures within the meaning of section 7106(b)(2) of the Statute.
V. Proposals 2, 3, and 4
A. Positions of the Parties
1. Union
The Union argues that Proposals 2, 3, and 4 propose a "joint [union-management] determination of the appropriate number of employees or positions" to be assigned to organizational subdivisions. Response at 6. The Union asserts that the proposals establish a "procedure by which to determine the number and types of employees or positions assigned to the organizational subdivisions[.]" Id. The Union also claims that Proposals 2, 3, and 4 concern the numbers, types and grades of employees within the meaning of section 7106(b)(1) of the Statute.
2. Agency
The Agency argues that Proposals 2, 3, and 4 "require that the [U]nion play an equal role with management in the decision making process regarding the entire operating budget for the commissary." Statement of Position at 5. According to the Agency, the Union's participation in these decisions "would . . . interfere with the [A]gency's rights by allowing the [U]nion to interject itself into the [A]gency's deliberative process." Id. at 6. Specifically, the Agency contends that the Union's participation in budgetary decisions would directly interfere with management's rights to determine its organization and to assign employees. The Agency argues that proposals that require Union participation in the process by which management exercises its section 7106 rights are outside the duty to bargain.
B. Meaning of Proposals 2, 3, and 4
Proposal 2 requires that the Agency and the Union "do a joint study" to determine the most efficient and productive way to "meet the budget requirement." Proposals 3 and 4 require that the parties either reach agreement by consensus on how to meet that requirement, or participate in impasse procedures if they cannot reach consensus. According to the Union, the proposals grant it a voice in making decisions on "how to organize the numbers and types of employees or positions assigned to the particular subdivisions." Response at 5. The Union interprets "the budget requirement" in Proposal 2 as meaning staffing levels that are consistent with the Agency's budgetary limits, and interprets the wording of Proposals 3 and 4 as applying to the joint study done to meet those staffing levels. As the Union's explanation comports with the wording of the proposals, we construe the proposals as requiring joint determination by the Union and the Agency on how to allocate staff in order meet the budget requirement. See Fort Rucker, 53 FLRA at 950. If consensus cannot be reached, then the parties would submit their dispute to impasse procedures, beginning with mediation.
C. Analysis and Conclusions
The Union does not dispute that Proposals 2, 3, and 4 affect management rights under section 7106(a) of the Statute. The Union argues that the proposals constitute procedures within the meaning of section [ v55 p998 ] 7106(b)(2), and that they concern matters under section 7106(b)(1) of the Statute. In this situation, we first address the Union's claim that the proposals constitute procedures. See American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 175-76 (1998).
The Authority has stated that where a union offers no arguments or authority to support a bare assertion that a particular proposal constitutes a procedure within the meaning of section 7106(b)(2) of the Statute, the Authority does not consider the assertion. See, e.g., American Federation of Government Employees, Local 1164 and Social Security Administration, District Office, New Bedford, Massachusetts, 54 FLRA 1327, 1341 (1998) (Proposal 6); National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 54 FLRA 521, 526-28 (1998). As the Union does not provide any arguments or authority to support its assertion that Proposals 2, 3, and 4 constitute procedures, we do not consider the Union's assertion further.
Under section 7106(b)(1) of the Statute, the "numbers, types and grades" of employees concerns the establishment of staffing patterns, or allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030 (1997). In this case, the disputed proposals, as construed above, require that the parties either agree on the allocation of staff or utilize an impasse process for resolving disputes over the allocation of staff. Thus, in effect these proposals require the Agency to bargain over the allocation of staff. Accordingly, we find that the proposals concern the "numbers, types, and grades" of employees under section 7106(b)(1), and are negotiable at the election of the Agency. Accordingly, we dismiss the Union's petition with regard to Proposals 2, 3, and 4. See National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1302, 1307 n.6 (1998), petition for review denied as to other matters sub nom. No. 98-1520 (D.C. Cir. Aug. 24, 1999).
VI. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate concerning Proposals 1 and 5. [n6] The Union's petition with regard to Proposals 2, 3, and 4 is dismissed.
Footnote # 1 for 55 FLRA No. 161
Although the Union's petition initially contained six proposals, the parties resolved their dispute concerning one of the proposals, and the Union withdrew its petition for review as to that proposal.
Footnote # 2 for 55 FLRA No. 161
The Authority's Regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised Regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior Regulations.
Footnote # 3 for 55 FLRA No. 161
As explained supra, note 2, we are applying, and we interpret here, only the Authority's Regulations that were in effect prior to April 1.
Footnote # 4 for 55 FLRA No. 161
The meaning that the Authority adopts for these proposals, and for the other proposals in this case, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the proposals are at issue. See 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, 741-42 (1996).
Footnote # 5 for 55 FLRA No. 161
The exception is that a proposal that would interfere with the necessary functioning of the agency is not within the duty to bargain. See VAMC, Newington, 53 FLRA at 420. As the Agency does not allege that Proposals 1 and 5 fit within this exception, we do not address it further.
Footnote # 6 for 55 FLRA No. 161
In finding Proposals 1 and 5 to be negotiable, we make no judgment as to the merits of those proposals.