43:1165(95)NG - - NFFE Local 15 and Army, Rock Island Arsenal, IL - - 1992 FLRAdec NG - - v43 p1165
[ v43 p1165 ]
The decision of the Authority follows:
43 FLRA No. 95
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
ROCK ISLAND ARSENAL, ILLINOIS
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
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). It concerns the negotiability of three proposals relating to the implementation of a Displaced Professional Employee Program. For the reasons stated below, we conclude that the proposals are inconsistent with section 7105(a)(2)(A) of the Statute and are nonnegotiable.
II. The Proposals
AMC interns that were members of the bargaining unit will be grandfathered in and not be subjected to the AMC Displaced Professional Employee Program. Management may apply this new program only to new hires or newly assigned interns.
All newly signed mobility agreements for AMC interns who were in the bargaining unit will be
destroyed and employees will be returned to the status quo.
All previous bargaining unit employees who were removed from the bargaining unit due to the AMC Displaced Professional Employee Program will be returned to the unit retroactively and the retention register will be amended to again include those employees.
The Union represents approximately 3600 General Schedule employees of the Agency. The Agency is a major subordinate command of the U.S. Army Materiel Command (AMC). The AMC maintains a career intern program to fill entry level positions in various career fields in the Agency. First-year and second-year interns are employees of the Army Materiel Command, work under a mobility agreement and are assigned to the Agency for training purposes only. Prior to the events giving rise to this negotiability appeal, third-year interns were permanently assigned to the Agency and did not work under a mobility agreement. In 1981, as a result of an Authority decision clarifying the Union's bargaining unit, third-year interns were included in the unit. Department of the Army, Headquarters, U.S. Army Armament Materiel Readiness Command, Rock Island, Illinois, 5 FLRA 346 (1981) (Army, Rock Island). First and second-year interns were found by the Authority to be excluded from the bargaining unit.
On July 13, 1990, the AMC notified the Union that a Displaced Professional Employee Program had been established to which all interns would be assigned. Implementation of the program was retroactive to October 1, 1989. As explained by the Agency,
[i]n effect, third-year interns were no longer permanently assigned to Rock Island and had a mobility agreement which might require relocation. Third-year interns were assigned to AMC and not to [the Agency] for funding purposes. The retroactivity of the program had the practical effect of removing 14 third-year interns from the bargaining unit.
Petition for Review, Enclosure 2 at 3 (footnote omitted).
The Union requested to negotiate about the Displaced Professional Employee Program, and the parties met on September 5, 1990. The Union submitted three proposals to the Agency, which were declared nonnegotiable on September 17, 1990. Subsequently, on September 28, 1990, the Union withdrew the original proposals and submitted three amended proposals, which are the subject of this negotiability appeal. The Union requested that the Agency either negotiate over the proposals or provide a written response declaring the proposals nonnegotiable. On October 2, 1990, the Agency responded to the Union stating that "no purpose would be served by issuing another allegation of non-negotiablility beyond that which the Agency provided to [the Union] on 17 September 1990." Petition for Review, Enclosure 4 at 3. On October 5, 1990, the Union filed the instant petition for review.
IV. Procedural Matter
The Agency asserts that the proposals contained in the petition for review are not substantively different from the proposals that were declared nonnegotiable on September 17, 1990. Consequently, the Agency argues that the petition was untimely filed and should be dismissed. In support, the Agency relies on American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 992 (1987), and American Federation of Government Employees, AFL-CIO, Local 1786 and U.S. Marine Corps, Marine Corps Development and Education Command, Quantico, Virginia, 26 FLRA 184 (1987).
The Union contends that the petition was timely filed. The Union states that the substance of the amended proposals is different from that of the original proposals that were withdrawn by the Union. The Union maintains that the original proposals affected the Displaced Professional Employee Program itself, while the amended proposals affect only the third-year interns and other bargaining unit employees who are adversely affected by the Agency's "unilateral change to the bargaining unit and the retention register." Response at 3.
Initially, we find, based on a comparison of the original proposals with the amended proposals, that the latter are substantively different. The original proposals submitted by the Union were directed at the Displaced Professional Employee Program itself. Thus, the original proposals stated that: "(1) The AMC Displaced Professional Employee Program will be disbanded in its entirety[;] (2) All mobility agreements associated with this program will be voided[;] (3) All ACTED Interns who signed up to this program will be returned to AMCCOM roles (sic) and bargaining unit RIF actions amended accordingly." Petition for Review, Enclosure 2 at 1. The amended proposals are more limited in scope and pertain to third-year interns who were members of the bargaining unit before the program was implemented.
We also find that the petition was timely filed under section 2424.3 of the Authority's Rules and Regulations. Under that section, a petition for review of negotiability issues must be filed with the Authority within 15 days after service on a union of an agency's allegation of nonnegotiability. If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The record indicates that on October 1, 1990, the Agency received the Union's written request for an allegation of nonnegotiability. In the Agency's response, dated October 2, 1990, the Agency stated that it would not provide another allegation of nonnegotiablility aside from that which had been provided on September 17, 1990. In our view, the October 2 response was a reiteration of the Agency's earlier allegation and constituted an allegation of nonnegotiability with respect to the proposals submitted on September 28, 1990. Although the Agency could have amended its position to reflect modifications to the proposals, it chose not to, based on an erroneous view that the amended proposals were not substantively different from the original proposals. Consequently, the petition for review, which was filed on October 5, 1990, was timely filed.
V. Positions of the Parties
A. The Agency
The Agency contends that the proposals do not involve conditions of employment of bargaining unit employees. In referring to the Displaced Professional Employee Program, the Agency states that "the employees impacted by this program and the union's proposals are not bargaining unit employees." Statement of Position at 2. The Agency further states that "[i]t is apparent, by the plain wording of the union's proposal, that the union agrees that the interns are no longer in the bargaining unit." Id. at 3. Citing the Authority's decisions in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), and American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988), enf'd sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990), among others, the Agency asserts that the proposals do not vitally affect conditions of employment of bargaining unit employees. The Agency also asserts that to the extent the proposals concern employees who are not in the bargaining unit, the proposals are negotiable at the election of the Agency, and the Agency has elected not to bargain.
The Agency makes the following additional arguments "[i]n the event the Authority chooses to review the negotiability of the union's proposals[.]" Statement of Position at 7. With regard to Proposals 1 and 2, the Agency contends that the proposals interfere with the Agency's right to determine its organization under section 7106(a)(1) of the Statute and its right to assign employees under section 7106(a)(2)(A) of the Statute. With regard to Proposal 3, the Agency contends that the proposal "is an order for the [A]gency to amend the bargaining unit." Id. at 9. The Agency states, as to Proposal 3, that it is precluded from negotiating over the content of the bargaining unit. The Agency maintains that "clarification or amendment of the bargaining unit is a function of the Regional Director, not the [A]gency[,]" citing section 2422.2(e)(4) of the Authority's Rules and Regulations. Id.
B. The Union
The Union contends that the proposals concern conditions of employment of bargaining unit employees. The Union argues that the third-year interns were in the bargaining unit at the time the Union submitted the proposals to the Agency and are still in the bargaining unit "unless/until the Authority reverses its previous decision [in Army, Rock Island]." Response at 2. The Union states that the employees are physically located at the Agency's facility, perform the same functions and hold the same positions as they did previously. The Union contends that if the Agency believes that the third-year interns should not be in the bargaining unit, then it should file a clarification of unit petition with the Authority.
The Union explains that the proposals were submitted to reduce the adverse impact of the program and to provide appropriate arrangements for adversely affected employees pursuant to section 7106(b)(2) and (3) of the Statute. The Union also states that its proposals do not affect future interns or employees who are not in the bargaining unit.
The Union also argues that the proposals do not interfere with the exercise of management's rights but, instead, constitute negotiable procedures and appropriate arrangements. As to Proposal 3, the Union states that the proposal "is not a request to amend the bargaining unit. It is a request for return to the status quo." Id. at 4.
VI. Analysis and Conclusions
We conclude that the proposals are nonnegotiable because they constitute an attempt to negotiate over the bargaining unit status of particular employees. As such, the proposals are inconsistent with section 7105(a)(2)(A) of the Statute.
As noted earlier, the Union takes the position that third-year interns were in the bargaining unit at the time the proposals were submitted and continue to be included in the unit. However, this explanation is inconsistent with the plain wording of the proposals. Thus, Proposal 1 states that "AMC interns that were members of the bargaining unit will be grandfathered in and not be subject to the AMC Displaced Professional Employee Program." Proposal 2 states that "AMC interns who were in the bargaining unit . . . will be returned to the status quo." Proposal 3 states that "[a]ll previous bargaining unit employees who were removed from the bargaining unit . . . will be returned to the unit retroactively . . . ." It is well established that where there is an inco