45:0640(56)NG - - NFFE Local 1482 and DOD, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, KY - - 1992 FLRAdec NG - - v45 p640
[ v45 p640 ]
The decision of the Authority follows:
45 FLRA No. 56
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in United States Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky v. FLRA, No. 91-1330 (D.C. Cir. Feb. 28, 1992). The court vacated our decision and order to the extent that we held that Proposal 1 was negotiable. The court remanded the case for further proceedings consistent with the court's decision in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). On remand, we conclude that Proposal 1 is nonnegotiable.
A. Proposal 1
The employer will provide appropriate training to supervisory personnel who are required to review employee 5 year update background investigation forms [Personnel Security Questionnaire-DD Form 398]. The Union will designate one unit employee as an observer to this training session to enable the Union to be knowledgeable of the specifics of the training. The Union will be notified in writing at least 10 working days in advance of the scheduled training.
At no time during the review of the said form by the supervisor will the material be in [an] unsecured location where unauthorized employees may have access to this data.
[Only the first paragraph is in dispute.]
B. Authority's Decision
In National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902 (1991), we found that Proposal 1 requires the Agency to provide training for supervisors who review unit employees' personnel security questionnaires. Noting that mistakes by supervisors in reviewing an employee's DD Form 398 could result in the revocation of an employee's security clearance and the loss of the employee's job, we found that employees have a direct and substantial interest in the ability of their supervisors to correctly and completely perform their security review functions. We concluded that although Proposal 1 has an effect on the working conditions of nonunit employees, the proposal vitally affects the conditions of employment of unit employees and, therefore, unless otherwise precluded, was negotiable.
In examining whether Proposal 1 directly interfered with management's rights under section 7106 of the Statute, we concluded in part that because the disputed language dictates the assignment of training to supervisors, it directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. However, we also concluded that because the proposal did not excessively interfere with management's right to assign work under section 7106(a)(B)(2) of the Statute, the proposal constituted a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
The Agency sought review in the United States Court of Appeals for the District of Columbia Circuit of our conclusion that Proposal 1 vitally affects the conditions of employment of unit employees. During the pendency of that appeal, the court issued its decision in Cherry Point. Because the issues on appeal in this case were related to the issues in Cherry Point, the court remanded this case to us for consideration in light of its holdings in Cherry Point. Both parties have filed briefs addressing, on remand, the application of the court's decision in Cherry Point to the proposal at issue in this case.
III. Positions of the Parties
The Agency contends that, under the court's opinion in Cherry Point, the vitally affects test has "no application" to proposals that attempt "to regulate the conditions of employment of supervisory personnel . . . ." Agency's Brief on Remand at 6. Consequently, the Agency argues, a proposal that directly implicates the conditions of employment of supervisory personnel "can never become a mandatory subject of bargaining." Id.
The Agency asserts that the plain language of the first sentence of Proposal 1 "exclusively concerns" the requirement that the Agency provide training for its supervisory personnel. Id. at 7. According to the Agency, under the proposal the Agency would "take no action with respect to bargaining unit employees." Id. The Agency asserts that the "effect of the proposal on bargaining unit members is clearly indirect and somewhat speculative." Id. at 8 (footnote omitted). In the Agency's view, the proposal is "a deliberate attempt to regulate the Agency's actions in regard to its supervisory personnel." Id. (footnote omitted). Citing Cherry Point, the Agency contends that Proposal 1 does not concern a matter subject to "mandatory bargaining" because the proposal seeks to "directly regulate the working conditions of supervisory personnel . . . ." Id. at 7.
The Agency also asserts that Authority precedent has long established that proposals "which have as their primary focus the . . . training of supervisory personnel" do not concern the "conditions of employment of unit employees" and, therefore, do not involve mandatory subjects of bargaining. Id. at 8 (citing American Federation of Government Employees, National Council of EEOC Locals No. 216, AFL-CIO and Equal Employment Opportunity Commission, Washington, D.C., 3 FLRA 504 (1980)). In sum, the Agency claims that Proposal 1 does not involve the conditions of employment of unit employees.
The Union asserts that, since the decision in 40 FLRA 902, the Agency has: (1) refused to bargain over the "portions of the case" found negotiable; (2) "retaliat[ed] against employees" for engaging in "protected activities[,]" with respect to certain employees' security clearances; and (3) "modified" DD Form 398 as it concerns employee training. Union's Brief on Remand at 1, 2. The Union further "strongly disagrees" with the Agency's assertion that "'the effect of the proposal on bargaining unit members is clearly indirect and somewhat speculative.'" Id. at 2 (quoting Agency's Brief on Remand at 8). The Union contends that the review of DD Form 398 by supervisors and by the Agency's investigative office "directly affects the employees by making all kinds of sensitive information available to" the individuals who make personnel decisions. Id.
IV. Analysis and Conclusions
For the following reasons, we find that Proposal 1 seeks to directly regulate the conditions of employment of supervisory positions and, therefore, is nonnegotiable.
In Cherry Point, the court approved the Authority's adoption of the vitally affects test used in the private sector, but found that the Authority had misapplied that test in certain circumstances. According to the court, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Cherry Point, 952 F.2d at 1440.
In discussing the application of the vitally affects test, the court differentiated among four groups of personnel that might be affected by a proposal: (1) employees not in any bargaining unit; (2) nonemployees; (3) management and supervisory personnel; and (4) employees in other bargaining units. As relevant here, the court held that the vitally affects test does not apply in circumstances where a union seeks to regulate conditions of employment of supervisory and management personnel who are excluded by the Statute from bargaining units. Cherry Point, 952 F.2d at 1441. The court noted that, pursuant to section 7112 of the Statute, supervisors and managers "are legally disabled from belonging to any bargaining unit[.]" Id. at 1442. The court concluded, therefore, that permitting a union to seek to negotiate to regulate the conditions of employment of supervisors and other management personnel would "violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only." Id. (emphasis in original) (citing 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)) (Authority held nonnegotiable a proposal specifying procedures for filling management and supervisory positions). See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-23 (1992) (Health Care Financing Administration).
Stated in terms of the principles set forth by the court in Cherry Point, the issue in this case on remand is whether Proposal 1 seeks to regulate the conditions of employment of supervisory personnel. Cherry Point, 952 F.2d at 1441-42.
In Health Care Financing Administration, 44 FLRA at 1421-23, we found, in part, that a proposal requiring an agency to hold managers and supervisors accountable for the successful implementation of the agency's affirmative employment program did not concern the conditions of employment of bargaining unit employees and, therefore, was nonnegotiable. In finding the proposal nonnegotiable, we applied the principles set forth by the court in Cherry Point and found that, to the extent that the proposal required the agency to hold managers and supervisors accountable for the successful implementation of the program, the proposal sought "to regulate the conditions of employment of management personnel who are excluded by the Statute from bargaining units." 44 FLRA at 1423.
In this case, Proposal 1 requires the Agency to provide appropriate training to supervisors who are required to review employees' 5