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 . . . .