47:1357(126)NG - - NFFE, Local 1332 and Dept. of the Army, Army Materiel Command, Alexandria, Virginia - - 1993 FLRAdec NG - - v47 p1357



[ v47 p1357 ]
47:1357(126)NG
The decision of the Authority follows:


47 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1332

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY MATERIEL COMMAND

ALEXANDRIA, VIRGINIA

(Agency)

0-NG-2120

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal.

The proposal contains a table that sets forth certain military ranks and their equivalent civilian grades for purposes of designating military personnel who may evaluate the performance of civilian employees and civilian employees who may evaluate the performance of military personnel. The proposal provides that the military personnel who are responsible for evaluating the performance of civilian employees must be, based on the table set forth in the proposal, at least one rank higher than the grade of the civilian employees whom they are evaluating. We find that a portion of the proposal does not concern the conditions of employment of bargaining unit employees. We find that the remaining portion of the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we conclude that the proposal is nonnegotiable.

II. Preliminary Matter

In its petition for review filed with the Authority on February 1, 1993, the Union submitted a single proposal that had been declared nonnegotiable by the Agency on January 26, 1993. Subsequently, in its response to the Agency's statement of position filed with the Authority on March 11, 1993, the Union requested that the Authority separate into "two issues" the single proposal submitted in the petition, designating a portion as "Issue one" and another portion as "Issue two[,]" and that the Authority provide separate negotiability determinations on each portion. Response at 1.

In a supplemental submission addressing the Union's response, the Agency contends that the Union's action of separating the proposal into two issues constituted the Union's submission of a second distinct proposal. The Agency contends that the Union's petition for review of this "second proposal" was not filed within 15 days of the Agency's declaration of nonnegotiability on January 26, 1993. Supplemental Submission at 2. In the alternative, the Agency argues that the portion of proposal designated as issue one in the response, when read without reference to the portion designated as issue two, "has no meaning." Id. Thus, the Agency argues that if the Authority determines that the petition was timely filed with regard to the second proposal, that proposal is not sufficiently specific to meet the Authority's conditions for review.

We find no merit to the Agency's contention that in requesting that the Authority separate into two issues the single proposal submitted in the petition for review, the Union was submitting a second proposal for which a petition was not timely filed. The proposal in the petition for review is identical to the proposal the Union discusses in its response. In addition, the Union did not raise in its response any arguments that were not raised in the petition. In our view, in seeking to separate the proposal into two issues, the Union effected no change in the proposal set forth in its petition. Consequently, we reject the Agency's claim that the Union's response constitutes an untimely petition for review.

We interpret the Union's request that the Authority separate the proposal into two issues in order to provide separate negotiability determinations on each designated portion of the proposal as a request that the Authority sever any portion of the proposal that may be negotiable from those portions that are found nonnegotiable. Ordinarily, the Authority grants such requests if portions of a proposal can stand independently of the rest of the proposal and if those portions have been specifically addressed by the parties. See, for example, American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 353 n.7 (1991). As the parties have addressed both issues, we will proceed to discuss those issues on their merits.

III. Proposal

In those cases where military personnel are required to evaluate a civilian or a civilian evaluate a military, the following equivalency of grades is agreed to:

 MILITARY
 GRADE    CIVILIAN  GRADE
 COL  (06)  EQUAL TO  GS/GM  15
 LTC  (05)  "  GS/GM  13/14
 MAJ  (04)  "  GS/GM  12
 CPT  (03)  "  GS/GM  10/11
 1LT  (02)  "  GS/GM  08/09
 2LT  (01)  "  GS/GM  07
 SGM  (E8/9)  "  GS/GM  06
 SGT  (E6/7)  "  GS/GM  05
 SGT  (E5)  "  GS/GM  04

In those cases where a military is evaluating a civilian, it is agreed that the evaluator, based on the above equilavencies [sic] must be at least one grade higher than the individual being evaluated.

IV. Positions of the Parties

1. Agency

In its statement of position, the Agency contends that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute insofar as the proposal provides that the performance of civilian employees can be evaluated by military personnel only if the military personnel are at least one grade higher than the grades of the civilian employees they are evaluating. In this connection, the Agency claims that the proposal "prohibits the agency from assigning performance evaluation work to certain individuals." Statement of Position at 2. As an example, the Agency states that under this portion of the proposal the Agency "would be precluded from assigning a Lieutenant Colonel to rate the performance of a GS-13 graded civilian employee." Id. at 3.

In support of its position that this portion of the proposal interferes with management's right to assign work, the Agency maintains that the proposal is similar to proposals found nonnegotiable in National Labor Relations Board Union and National Labor Relations Board, 42 FLRA 1305 (1991) (Proposal 1) and Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149 (1990). Furthermore, the Agency contends that this portion of the proposal interferes with management's right to determine its organization under section 7106(a)(1) of the Statute because it "would mandate a particular organizational structure of the [A]gency . . . ." Statement of Position at 4.

In a supplemental submission addressing the Union's response, the Agency contends that the portion of the proposal concerning the evaluation of military personnel by civilian employees does not concern the conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute. The Agency asserts, in this connection, that "[t]he civilians responsible for rating the soldiers are supervisors." Supplemental Submission at 3. The Agency argues, therefore, that this portion of the proposal affects only military personnel who are evaluated and supervisors who perform the evaluations--two groups of individuals who are outside of the bargaining unit.

2. Union

In its petition for review, the Union states that the proposal establishes "an equivalency of grade for rating purposes for the military and civilian employees[.]" Petition for Review at 1.

The Union notes that there are military personnel among the Agency's supervisory staff. As characterized by the Union, the Agency's position is that "any grade military supervisor can rate any grade civilian [employee], for example, an Army Captain (03) can be the supervisor of and rater for a GS-14." Id. The Union asserts that it disagrees with that position and "that an equivalency of grade determination is required to resolve this issue." Id.

V. Analysis and Conclusions

For the following reasons, we find that the portion of the proposal that concerns the evaluation of military personnel by civilian employees does not implicate the interests of bargaining unit employees and, therefore, is nonnegotiable. We further find that the remaining portion of the proposal, which requires, based on the table set forth in the proposal, that the military personnel responsible for evaluating civilian employees must be of a higher rank than the grade of the civilian employees they are evaluating, interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

1. Limitations on the Evaluation of the Performance of Military Personnel

Initially, we note that the language of this portion of the proposal does not indicate whether the civilian employees designated to evaluate military personnel are in the bargaining unit. The Union did not address this matter. The Agency states in a supplemental submission, however, that the "civilians responsible for rating the soldiers are supervisors." Supplemental Submission at 3. As nothing in the record indicates otherwise, we conclude that all the civilians who evaluate military personnel are supervisors. As such, they are excluded from the bargaining unit under section 7112(b)(1) of the Statute.

In addition, military personnel are not employees within the meaning of section 7103(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 948 (1992) petition for review filed as to other matters, No. 93-70137 (9th Cir. Feb. 8, 1993); Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana, Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 734 (1985), petition for review filed as to other matters denied mem., 809 F.2d 930 (D.C. Cir. 1987).

Generally, proposals seeking to regulate the conditions of employment of persons not included in a bargaining unit, such as the civilian supervisors and the military personnel involved here, are not negotiable. 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), however, the court approved the Authority's adoption of the vitally affects test used in the private sector to determine whether proposals directly relating to the conditions of employment of persons outside a bargaining unit might nevertheless fall within the scope of the duty to bargain. 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. With respect to non-employees, the court stated that "a union may bargain with respect to non-employees if a non-employee matter vitally affects bargaining unit interests[.]" Id. at 1442.

In this case, the portion of the proposal concerned with which civilian supervisors may evaluate the performance of military personnel purports to regulate the working conditions only of supervisory civilians and military personnel who are non-employees. Moreover, the record provides no basis on which to determine that matters involving the designation of civilian supervisors to evaluate the performance of military personnel would have any effect on the conditions of employment of unit employees. Thus, the proposal does not concern a matter regarding conditions of employment affecting unit employees within the meaning of section 7103(a)(12) of the Statute. We find, therefore, that this portion of the proposal is nonnegotiable.

2. Limitations on the Evaluation of the Performance of Civilian Employees

Initially, we note that the language of this portion of the proposal does not indicate whether the civilians who are evaluated by military personnel include employees other than those in the bargaining unit, and the parties did not address this matter. As nothing in the record indicates a contrary intent, we will assume for purposes of our decision that in discussing the civilian employees who are evaluated by military personnel the proposal refers solely to bargaining unit employees.

Thus, this portion of the proposal establishes, based on the table set forth in the proposal, the grade level of military personnel who may evaluate the performance of unit employees. As this portion of the proposal is concerned with the evaluation of the performance of unit employees, we find that this portion of the proposal is directed at, and therefore concerns, the conditions of employment of bargaining unit employees.

We next address the Agency's contention that this portion of the proposal conflicts with management's right to assign work. The effect of this portion of the proposal is to preclude the Agency from exercising its discretion to assign the work of evaluating civilian employees to military personnel unless they are at least one grade higher than those civilians. As this portion of the proposal specifies the particular individuals who may perform a specified task, we conclude that this portion of the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10 (1993) petition for review filed, No. 93-1255 (D.C. Cir. Apr. 2, 1993) (Provisions 3 and 4) (provisions prescribing that the tasks of